Case information

Charter of Rights – Double jeopardy – Abuse of process – B.C. Securities Commission imposing an administrative penalty – Applicant applying for a stay of proceedings at her criminal trial, submitting that the administrative penalty was a “true penal consequence” and that the criminal proceedings constituted double jeopardy, contrary to s. 11(h) of the Charter, or alternatively were an abuse of process, contrary to s. 7 of the Charter – Whether the Court of Appeal erred in finding that the administrative monetary penalty did not constitute a “true penal consequence”, such that s. 11(h) of the Charter precluded the criminal proceedings – Whether the Court of Appeal erred in finding that the criminal proceedings did not amount to an abuse of process – Whether the Court of Appeal erred in their approach to the “true penal consequence” test – ss. 7, 11(h) of the Charter of Rights and Freedoms.

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There was a concurrent investigation by the R.C.M.P. and the B.C. Securities Commission into whether Ms. Samji was operating a Ponzi scheme. Ms. Samji was convicted of 14 counts of theft over $5,000 contrary to s. 334(1) of the Criminal Code, R.S.C. 1985, c. C-46, and 14 counts of fraud over $5,000 contrary to s. 380(1)(a) of the Code. Ms. Samji was found to have perpetuated a fraud contrary to s. 57(b) of the Securities Act, RSBC 1996, c. 418, by operation of the Ponzi scheme. The B.C. Securities Commission imposed a disgorgement order in the amount of $10,811,799 pursuant to s. 161(1)(g) and an administrative penalty (AMP) of $33 million pursuant to s. 162 of the Securities Act.

Ms. Samji applied for a stay of proceedings submitting that the $33 million AMP was a “true penal consequence” and that the criminal proceedings constituted double jeopardy, contrary to s. 11(h) of the Charter, or alternatively were an abuse of process, contrary to s. 7 of the Charter. The application for a stay of proceedings was dismissed. The Court of Appeal dismissed the appeal.