The Commission for Public
Complaints Agents the RCMP
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RE: Richard Ochnik Vs. “O” Division Assistant Commissioner M. McDonell and
Superintendent K. Harrison IMET, Public Complaints Investigation, Part VII of the RCMP Act.
Dear Sir;
I disagree with Chris Leather, Sergent, Acting Non Commissioned Officer in Charge, Professional Standards Unit, Central Region, Toronto letter dated 2010-02-16 , file 2010-120758.
I am requesting a review of the response by the RCMP for the reasons listed below.
I have all the court transcripts for your examination and copies of the new evidence.
First of all the criminal act of perjury committed by TD Waterhouse and Robert Brown was so significant that it in itself changed the outcome of the case. Although there were many untrue statements this case, the issue revolved around a singular issue “Did TD Waterhouse represent Ochnik and was the broker, Brown truthful when he claimed not to know who gave him over $600 000 in commissions”.
I do not understand the RCMP’s response since I believe a significant crime was committed and I came to them for help and protection. Our investors and I have been criminally maliciously slandered and wrongfully labeled by the OSC and TD Waterhouse. My reputation and livelihood have been so dramatically destroyed to the point where I have been deprived of my livelihood. Members of my family including myself have become insolvent and bankrupt. I do not have the financial means to deal with this matter in any other way but to rely on the police and their duty to enforce the “law equally and without prejudice”. I am asking the RCMP to protect us from this criminal act. The OSC contrary to its mandate used unlimited taxpayer’s funds to represent TD Waterhouse to the detriment of the shareholders to which the OSC was mandated by the Ontario Legislator to protect. (TD Waterhouse was never a shareholder).
The OSC’s unjust restitution order which requires me to pay TD Waterhouse $1.5 million (the propitiators of the perjury) and the continual publication of the deliberate misinformation by the OSC makes my ability to ever recover to a point where I could afford to defend myself impossible in my life time. The OSC order has also taken away my liberty of being an officer or director of a public company and the normal exemptions allowed to all other Ontarians to raise capital through the sale of shares
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under the Ontario Securities Act. My liberty has been permanently suspended for my entire life time. In fact my life and lifelong dreams and passions have been taken from me. The brokers were allowed to keep over $600 000 in commissions paid to them by the company. The punishment is unjust and horrifically excessive given the true nature of the issues.
I do not understand how quickly the RCMP can draw a conclusion without a single officer from the RCMP ever requesting to speak with me in regards to the allegations. At no time has the RCMP ever asked me any questions or examined my new evidence. The lack of a reasonable response and no action by the RCMP is in itself a violation against the integrity of the individual’s right to security in the physical and psychological context. The RCMP failed to conduct an adequate investigation in making a determination of any kind but specifically in applying subsection 45.36(5)
The issue at hand is not the outcome of the hearing or a complaint about the procedure. Although the facts and evidence may in itself encourage a broadening of the RCMP investigation. The issue at hand is that a criminal act was committed to falsely bring about the outcome of a public hearing that was later indorsed by the Ontario Court.
Regardless of the outcome of the case, there can only be one truth with no exception. The fact that there are conflicting truths from the same source is, in itself, clearly undisputable evidence that, Hatice Pakdel, TD Waterhouse broker committed a crime. The law does not differentiate between a truth or a lie, rather, it deals only with the fact that there was an intention to mislead, and that a statement was false. The fact that Hatice Pakdel ‘s false statements were relied on by the Ontario Securities Commission is a crime. The fact that Robert Brown fabricated evidence with the sole intention to present it to the commission is apprehensible.
I wish to only deal with the criminal act of perjury, obstruction of justice and fraud. We should not be regressing from this issue when determining whether a criminal act was committed and whether the law should be enforced. The evidence that is now in my possession was not available at the hearing. In fact the OSC and TD Waterhouse denied its existence. There is a general duty on the part of the prosecution to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the prosecution does not propose to adduce it referred to in s. 37(2) of the Canada Evidence Act.
The motive for the false statement made by a broker at TD Waterhouse was to avoid a conflict of interest, a conflict with TD Waterhouse compliance guidelines, the Investment Dealers Association and Ontario Securities Act which clearly states that a broker is in violation – if the broker is acting for both the purchaser and the seller of the same security, as was clearly the case in this issue.
In regards to reference of Subsection 45.36(5) of the Act, it has not been properly applied and I believe was misinterpreted by the RCMP, Sergeant Chris Leather, and my issue does not fall into this category given the circumstances.
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Subsection 45.36(5) of the Act states:
Notwithstanding any other provision of this Part, the Commissioner may direct that no investigation of a complaint under subsection 45.35(1) be commenced or that an investigation of such a complaint be terminated if, in the Commissioner’s opinion,
(a) the complaint is one that could more appropriately be dealt with, initially or completely,
according to a procedure provided under any other Act of Parliament;
(b) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.
This Subsection should not be applied at this preliminary stage of an investigation. This subsection was not established to allow the RCMP to turn their back on a victim of crime. It was not intended to be used to deny a victim the right to justice or protection. In fact, I am also relying on this section to demonstrate that it clearly and without question limits the RCMP from not investigating this matter. I am also relying on the entrenched supremacy of the “Constitution of Canada” and the “Charter of Rights” that my father, a son of a fallen police officer and a war veteran proudly hung in our home.
In fact, this current application of subsection 45.36(5), I believe, is in violation of the “Canadian Constitution” and my “Charter of Rights”. Subsection 45.36(5) cannot be enforced if it is in violation of the “Canadian Constitution” and my “Charter of Rights”.
The “Canadian Constitution” and my “Charter of Rights” under “Section 7”was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase “Everyone has the right to life, liberty and security of the person” serves to underline the human element involved; only human beings can enjoy these rights. The Police are the enforcers of a person’s right to security.
The Courts have held that the right to security of a person “both the physical and psychological integrity of the individual”. Although these cases considered the right to security of the person in a criminal law context, I believe that the protection afforded by this right extends beyond the criminal law and can be engaged as it reflects on the RCMP’s refusal to respond and to engage a subsection that was never intended to be in conflict of my rights. The mere fact that our rights, as set out in the Charter and are guaranteed, does not permit the interference of Parliament nor does it allow for the application of Subsection 45.36(5) enacted by Parliament if it interferes with or is in conflict with the “Canadian Constitution” and my “Charter of Rights”.
Section 7 of the Constitution is interpreted by the courts -” to trigger its operation there must first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that the deprivation is contrary to the principles of fundamental justice.”
I believe that the RCMP has violated my rights by refusing to equally apply the law and refused to investigate a crime when a crime was committed.
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I agree with Honorable Mr. Justice Robert Blair comments regarding perjury:
This problem is so serious that the first government report entitled Civil Justice Review on the joint review of the civil justice system in Ontario by the Ontario Court of Justice and the Ministry of the Attorney General of Ontario, co-chaired by the Honorable Mr. Justice Robert Blair and the Assistant Deputy Attorney General, emphasizes that perjury and false statements under oath or solemn affirmations are creating a crisis in the justice system of Ontario. This crisis needs to be addressed with our full attention and concern.
By not enforcing the law, is in itself, an assault on the basic beliefs and values of our society and contrary to the public’s best interest. It is an act that must be sanctioned; and enforcement is a duty of all law enforcement, as is the protection of individuals’ rights under the constitution. The basis and strength of a democracy is based on fair and just application of the law.
Regarding the response of the RCMP dated February 16th 2010 to my complaint, the RCMP made reference to what it is referring to as an investigation. Their investigation was a simple summary of the OSC hearing (or the chairman’s public conclusion statements made months before he was acting chair at my hearing), and in particular its conclusions are based on the perjury of witnesses. I cannot believe that a victim can go to the police and the RCMP and they only speak to the criminal to determine whether the case should be investigated. What were they expecting the criminal to say? This new evidence was not available during the OSC hearings and could not have been dealt with more appropriately as would have been the case during the hearings.
The RCMP could not make a determination whether further investigation is reasonable or warranted without speaking with me and viewing the evidence to make such a determination. I am confident that if there was a proper investigation it would uncover other irregularities within the OSC and its conduct.
As victims, we have been financially destroyed and suffered losses of over $10 million and do not have the resources to support a litigation that has been estimated to cost over $300K. I have spoken to several lawyers who examined the evidence and they all advocated that I should proceed. They advised me to seek assistance from the police because TD Waterhouse and the OSC have virtually unlimited funds and as many procedural road blocks as possible to bankrupt the process of justace.
Unfortunately, only criminals are entitled to legal aid and the victims by virtue of the constitution rely on the police to protect them and keep the peace. In fact the financial disposition of the victims prohibits any alternatives and no other alternative is available.
Since the RCMP is relying on the OSC conclusions, I wish then to bring your attention to the fact that the OSC had confirmed that this case was a multi jurisdiction issue involving investors in 6 provinces. The OSC indicated that the investors were misled and taken advantage of – many of the seniors. This issue deals with the protection of seniors and the integrity of our financial system. This case involves the loss of $1.5 million dollars of shareholders funds. If it is perceived that the RCMP refuses to investigate banks, then the outcome may kick back in lack of consumer confidence and could be devastating to not
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only Ontario but Canada on the international markets. In fact, such outcome could be devastating to the RCMP where consumer confidence is already questioning its conduct.
Without truth the process cannot function. The swearing of false statements, knowing them to be false with intent to mislead the Securities Commission, to obtain a result and advantage in a hearing is a crime. The issue of this crime is a federal matter.
(2) Any witness whose evidence is admitted or who makes a solemn affirmation under this section or section 14 is liable to indictment and punishment for perjury in all respects as if he had been sworn.
R.S., 1985, c. C-5, s. 15; 1994, c. 44, s. 88.
The expense is enormous to all parties and could have been avoided. Legal fees are extravagant for all parties, myself, the Government of Ontario, and ultimately the tax payers.
This case could be a case that sets the RCMP out as a fore runner in Canadian justice and if this case expands to deal with the other issues that will become quite apparent during their investigation.
I was told by the Toronto Police Services that because it is a multi jurisdiction case it is not within the jurisdiction of their police force. The Toronto Police refused to meet with me or look at the evidence. However, I was told by the officer that I am not the only person to request an investigation into the conduct of the OSC. He stated “ I heard strange things go on up there”.
I then spoke to the OPP with the same disappointment. The OPP indicated that the case is in Toronto and multi provincial and that it was not within their jurisdiction or mandate to investigate. The OPP refused to meet with me or look at my documented evidence.
The OSC refuses to revisit the case involving TD Waterhouse (TD’s lawyer was a past OSC employee). Besides the OSC chair publicly announced the outcome of the case as was determined and decided with TD Waterhouse months before, he then sat as chairman at my hearing. In fact, there are several news documentaries and articles questioning the integrity and conduct of the OSC when dealing with cases such as this one and other frauds.
In conclusion all six lawyers and both the Toronto Police Services and OPP suggested calling in the RCMP.
Kindest Regards
Richard Ochnik
Ontario Securities Commission 