On May 26, 2016, the British Columbia Provincial Court dismissed Rashida Samji’s request for a stay of criminal fraud charges in R v. Samji. The British Columbia Securities Commission had previously levied an Administrative Monetary Penalty (“AMP”) of $33 million against Samji, in relation to what the British Columbia Securities Commission found was a $100 million Ponzi scheme perpetrated by Samji between 2003 and January 2012. Samji had earned the nickname the “Magic Lady” for the large profits she claimed to generate for clients. Samji argued that the AMP was essentially a criminal penalty and the stigma that she has suffered as a result of media coverage amounted to criminal punishment. In light of the AMP, she argued that the Charter prevented double prosecution under both the Securities Act and Criminal Code.
The Court looked to the factors laid out in the Supreme Court of Canada decision in Guindon v. Canada to assess whether the AMP constituted a true penal consequence. While the $33 million penalty was quite large, the Court found that it was designed to deter and not punish. The Court noted that the AMP reflected the seriousness of Samji’s misconduct and served as a substantial general deterrent to others who might commit fraud. The Court concluded, that while Samji had been held accountable to the Securities Commission and its audience, her misconduct has not been redressed to society at large. This was the purpose of the criminal proceedings that were underway.
Key Takeaway: Courts will continue to look to the Guindon factors in assessing whether an AMP is a true penal consequence.
With thanks to Ben Sakamoto for his assistance.