My name is Christopher Andrew Burke. By this time you all know the circumstances that have led to the sanctions hearing before us. My submissions in regarding to the sanctions are as follows.
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
As I have previously stated the BCSC is required to follow the rule of law and operate within the confines of our Constitutional rights unless a legislative act explicitly states otherwise. No legislation in the Securities Act including Section 170 give it the legal authority to commit criminal offences and continue a malicious illegal prosecution against citizens of this Province.
Application of Charter
Marginal note:Application of Charter
- 32. (1) This
- (a) to the Parliament and government of
Canada in respect of all matters within the authority of
Parliament including all matters relating to the Yukon
Territory and Northwest Territories; and
- (b) to the legislature and government of
each province in respect of all matters within the authority
of the legislature of each province.
- (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
Marginal note:Exception(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Marginal note:Primacy of Constitution of Canada
- 52. (1) The
Constitution of Canada is the supreme law of Canada, and any
law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no
force or effect.
Marginal note:Constitution of Canada(2) The Constitution of Canada includes
- (a) the Canada Act 1982,
including this Act;
- (b) the Acts and orders referred to in
the schedule; and
- (c) any amendment to any Act or order
referred to in paragraph (a) or (b).
- (a) the Canada Act 1982, including this Act;
Marginal note:Amendments to Constitution of Canada(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada
Why were the respondents not informed of this? The BCSC is a public agency, by law answerable to the public.
- Obligation to proceed according to the Rule of Law and the Canadian Supreme Court Rules.My first point addresses the process of the tribunal and the so called court that it runs. Though the Securities Act bestows certain powers upon the Agency and its members it does not allow for repeated will-full violation of Constitutional Rights. The Agency cannot rely on Section 170 of the Securities Act to provide for itself and its agents any form of immunity of legal prosecution of any kind. The tribunal operates in a whimsical and arbitrary manner. The Tribunal does not have the authority to operate its courts in such a manner according to Section 4.1 of the Securities Act. Any section of the Tribunals Act that would allow it to do so does not apply to the Securities Commission. No legislative acts in the Securities Act dictate how to operate and proceed in manners relating to courts, hearings, trials, and other forms of the administration of justice therefore the BCSC is obligated by law to operate in the manner of Canadian Supreme Court. This is according to the Canadian Constitution of 1982 and the Charter of Rights Sections 32 and 52. Any decisions rendered by this tribunal have no legal merit.Continuing to proceed is a crime unto itself according to the Criminal Code Section 139 Obstruction of Justice. The BCSC continues this charade of a court knowing indictable offences occurred in the course of proceedings yet refusing to immediately halt proceedings and rectify its wrongs as is prescribed by Supreme Court. Section 122 Breach of Trust By a Public Officer, the BCSC is perpetuating a breach of trust against the respondents and the Canadian people by its continuation of this process. Every member involved in the continuation of this process is also liable to charges as per Section 463 and Section 465 regarding Conspiracy and Accessory.Continuing this current course could also cause some members of the agency to open themselves up to liability in regards to Section 126 Disobeying a Statute if they were not already.Most of the Agencies officials are lawyers, all are public servants. As such all should know full well the extent of the law and how it relates to their conduct as public servants and agents of the BCSC.
- In regards to Distribution of Securities without a Prospectus.The Commission has charged the respondents with distributing securities without a prospectus. The problem with these charges is not only laid out in the first point against the legality of the Commissions proceedings. It is also evidenced by the fact that these charges would likely have not existed had the BCSC first answered our call and our wish to co-operate in order to maintain compliance and our responsibilities to our shareholders. The respondents thus took appropriate measures to ensure the continuation of the business and protect the shareholders investments. These measures were not malicious acts nor were they purposefully committed with criminal or deceitful intent. They were simply intended to protect the business and the shareholders. The charges of distributing without a prospectus have no legal merit due to the fact that they would not exist had the BCSC followed due protocol.
- In regards to misleading and withholding information.The BCSC is obligated due to its mandate as a public agency to respond to all enquiries, calls, and public complaints in a timely fashion. The BCSC is also compelled by law to be truthful and act with honesty in all matters including its relations with the public. The BCSC should have informed the respondents when the respondents first contacted the BCSC that they could not help the respondents in the matter of being defrauded by the Glusings. The BCSC chose too omit such an action and instead began the process of entrapment. The BCSC did not inform the respondents nothing could be done about the offshore company Spryu until seven months after the respondents first reported the situation. This is not how a public agency charged with maintaining a credible and ethical marketplace should operate. This is not my opinion this is law. See Section 128, Section 122, and Section 129 of the Canadian Criminal Code.
- Threatened with 'contempt of court' for failure to testify against ones Self.How can the BCSC bully citizens into testifying against themselves and threaten them with being called into 'Contempt of Supreme Court' when Supreme Court rules are clear. The Canadian citizen has the right to refuse to take the stand and testify against oneself. The BCSC is bestowed the power of the Supreme Court in certain manners of its operation including the power to compel a witness. That power however does not include the right to compel one to testify against oneself. Section 144 of the Securities Act gives the investigators the power to compel evidence in the same manner as the Supreme Court. No language in the Act indicates or gives evidence to the right to summon a Canadian Citizen to testify against oneself. Section 11 (c) of the Canadian Constitution of 1982 enshrines this right and the BCSC being a lesser court with no legislative authority to do so is in contravention of the Canadian Constitution and the Canadian Criminal Code. This Tribunal in addition to all members of the BCSC including the CEO are currently continuing to remain party to a series of criminal offences by perpetuating our prosecution. The fact that every member of the agency knows this is a compromised illegal proceeding yet chooses to remain on course again makes every one involved in the prosecution liable by law to the punishment prescribed by the Canadian Criminal Code.
- Perjury and Bank Account Seizures.The seizure of the Thibert accounts never should have happened. The BCSC had no legal grounds and clearly knew it was not a possible recipient of any proceeds of crime. The BCSC had access prior to the seizure and had no reasonable grounds to issue a cease trade order.Donders' committing perjury and the BCSC's continual denial of responsibility in this matter is just one aspect of bad faith involved in this incident. If Ms. Donders very own testimony is to be believed she did not lie in regards to the cease trade. Ms. Donders simply instructed John Thiberts TD Account manager to lie to his client instead. In addition as previously mentioned the order to cease trade the accounts never should have went out. The BCSC had all banking information especially in light of the fact they were due to 'interview' Mr. Thibert around that time. Certainly the BCSC should operate with all due diligence and have a thorough examination of banking records done prior to any cease trade decisions, is it not accountable to the public? Any way this saga is looked at it demonstrates bad faith and a tainted investigation and this incident alone is legal grounds to drop all proceedings. A violation of Section 139 of the Canadian Criminal Code.
- The Public posting of the Thiberts' Account Numbers.Twice the Thiberts bank account numbers were posted on the internet for the public to see. The first time may have been a mistake. The second time the numbers were posted was well after the BCSC had already been asked (and seemingly complied) to take down the bank account numbers. This is a clear contravention of the Privacy Act.Repeat offences against the respondent destroy any credible argument that the BCSC employs in Section 170 of the Securities Act as defence against prosecution.
- Missing Preliminary Hearing TranscriptsThe BCSC's refusal to admit the existence of preliminary hearing transcripts for the Oct 2014 hearings is another example of a clear attempt to pervert the course of justice. We all spoke to the stenographer and recorded our names for the courts record. The BCSC's position is that there never were any preliminary hearing recordings and the BCSC is not in a consistent habit of recording such meetings. The thing is, again as with so many other incidences in this case even if the BCSC is telling the truth and they really did not record the preliminary hearings the BCSC would still be in violation of the Constitutional Laws which governs it.Nothing in the Securities Act Legislation specifically outlines the BCSC's right to act of its own accord in the process of investigation, prosecution, and trial of regulatory offences.Again the BCSC finds itself without legal merit and in contravention of the law.
- Bad Faith and Malicious Prosecution.The massive string of indictable offences are evidence of an investigation performed in malice and with clear criminal intent. On there own perhaps one or two of these incidents could be overlooked as simply having been a mistake that occurred during the course of an investigation that was conducted in good faith. Together matters like will full deception and repeated violation of Constitutional Rights on behalf of the BCSC indicate that this investigation was tainted from the beginning.
Arrest without warrant by any person
- 494. (1) Any
one may arrest without warrant
- (a) a person whom he finds committing an
indictable offence; or
- (b) a person who, on reasonable grounds, he
- (i) has committed a criminal offence,
- (i) has committed a criminal offence,
- (a) a person whom he finds committing an indictable offence; or
- R.S., 1985, c. 27 (1st Supp.), s. 75.
The BCSC should be aware that it is not the only one with legal rights and powers. I urge the BCSC to seriously reconsider its position on this matter and agree to settle the dispute between us before for its own good. If the BCSC is not ready to make right of the wrongs it has committed then the BCSC will be held accountable for its actions, by the supremacy of God and the Rule of Law it will be so.
Christopher Andrew Burke