[705] There is no such thing as a “fiduciary duty” defence to fraud. Corporate obligations cannot be used as a cloak to shield criminality. “… [D]eliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property of others at risk” is criminal.[497]
[706] The criminal law does not recognize a defence of contributory negligence.[498] That is to say, no defence can be mounted from the various arguments by Mr. Potter and Mr. Colpitts that NBFL was the real culprit. As noted by the Crown in its factum, these arguments included: NBFL’s “operational wrongdoing and mismanagement within [their] Halifax branch and Montreal head office” was the reason for any manipulative trading; KHI’s collapse was a result of “mismanagement of credit and concentration inside NBFL” and not because the conspirators could no longer prop up the share price; and NBFL’s failure to intervene earlier to shut down Bruce Clarke’s trading activities.
[714] The reason why KHI ultimately collapsed in September 2001 was also irrelevant to the charges. Mr. Colpitts attributed the collapse:
[293] … to an “unforeseen confluence of internal and external factors” including the general market environment where financing dried up, the actions of NBFL, and the actions of insiders who treated their shares in the small-cap company like cash to purchase houses, cars, boats, and so on.[505]
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