Uncompelled Justice: Why David Sharpe’s Abuse of Process and Charter Challenge Demands Canada’s Attention

By Chief Del Riley, former President of the National Indian Brotherhood, and lead negotiator of s. 25 and s. 35 of Canadian Constitution.

The power of a state to compel testimony is among its most coercive tools. That power, when misused, threatens not only the rights of the individual but the constitutional foundations of our justice system. In the case of David Sharpe, a Mohawk entrepreneur and former CEO of Bridging Finance Inc., the Ontario Securities Commission (OSC) crossed a critical legal line—and may have changed the law retroactively to cover it up.

Sharpe’s Abuse of Process and Charter challenge, now heading to Ontario’s Divisional Court, should alarm anyone concerned with fairness, accountability, right to privacy of compelled individuals, right to silence or the future of Indigenous leadership in Canada’s financial sector. It raises pressing questions under sections 7, 11, and 13 of the Canadian Charter of Rights and Freedoms and goes to the heart of the public’s confidence in our institutions.

In 2021, the OSC compelled Mr. Sharpe to testify under section 11 of the Securities Act. This provision forces witnesses to answer questions under threat of penalty, denying them the right to remain silent—even if the answers might be used against them. Canadian courts have long held that such compelled evidence must never be disclosed or used without strict legal oversight.

But that’s exactly what happened.

Without a tribunal order—as required by section 17 of the Act—OSC staff disclosed Mr. Sharpe’s testimony and evidence to third parties, including a court-appointed receiver and, in short order, to national media. The day after the court appointed the receiver, The Globe and Mail published a story quoting from that testimony—testimony that had never appeared in public filings. The damage was immediate and irreversible. Mr. Sharpe’s career was destroyed, his reputation stained, and his ability to challenge the process fatally undermined. This all happened a year before any formal allegations by the OSC against Mr. Sharpe.

This was not a mere clerical error. The OSC’s own Vice-Chair, Tim Moseley, later confirmed in a written tribunal decision that the disclosure violated the law. And yet, the OSC refused to remove the improperly disclosed material. It offered no meaningful remedy. Worse still, it continued to use the evidence as if nothing had gone wrong.

Rather than face scrutiny, the Ontario government quietly amended the law. In 2022, it amended section 17(6) to the Securities Act, giving the OSC the power to disclose compelled testimony and evidence without a tribunal order—something it had already done in Mr. Sharpe’s case.

This kind of retroactive legislation is profoundly troubling. It sends the message that regulators can violate a law today and change it tomorrow to justify their actions. That is not how democratic accountability works. That is not how the rule of law works.

Beyond the procedural and constitutional implications, the case raises deeper questions of systemic discrimination. Mr. Sharpe is a proud First Nations executive who helped build one of Canada’s largest Indigenous-focused lending platforms. He raised concerns about racial bias in the OSC’s approach—concerns that were submitted in writing to the Director of Enforcement and never answered.

What message does it send to Indigenous leaders when regulatory institutions silence equity concerns, misuse their authority, and suffer no consequences?

Mr. Sharpe’s case is not just about one person. It is about the balance of power between individuals and the state. It is about ensuring that no regulator – no matter how powerful – is above the Constitution. It is about affirming that procedural safeguards exist not only in principle, but in practice.

Canada cannot afford to normalize the misuse of compelled evidence. It cannot allow retroactive legislative fixes to override Charter rights, such as the enshrined Right to Silence and to not self-incriminate. And it must not permit silence in the face of discrimination – especially when voiced by those working to uplift Indigenous communities.

This Charter challenge is an opportunity for the courts to reaffirm that procedural fairness, equality, and accountability are not optional. They are the bedrock of a just society.

And justice, especially where the power of the state is involved, must never be compelled. This case is not just about one regulator – it speaks to a broader pattern where administrative bodies exercise coercive authority over Indigenous peoples without proper safeguards. From land and water governance to conservation enforcement, we see how unchecked regulatory overreach can erode constitutional protections. The Sharpe case is a call to hold all such bodies accountable to the Charter and to procedural fairness free from abuse.