A former Calgary investment adviser remains guilty of fraud, but whether he accepted a secret commission will be the subject of a new trial. Jeffrey Brian Ber’s conviction for the latter was overturned by the Court of Appeal on Friday. Ber was arguing to have convictions for two counts of fraud over $5,000 overturned as well. Court didn’t see it Ber’s way on those. “The appeal is dismissed with respect to the two fraud convictions but allowed regarding the conviction for accepting a secret commission,” the decision read. “A new trial is ordered on that charge.” On the fraud convictions, court noted, “The appellant argues that the convictions for fraud are unreasonable, and specifically that the trial judge erred in failing to apply the criminal standard of proof, engaged in illogical reasoning, and misapprehended evidence by failing to properly assess the credibility and reliability of witnesses.” On the secret commission conviction, court noted, “Similar grounds were advanced in relation to the conviction for receiving a secret commission. However, in the oral hearing the appellant focused on the failure of the trial judge to address exculpatory evidence that directly contradicted the key inference she drew to sustain that conviction.” Ber was originally found guilty following “a lengthy trial” for actions that took place in 2017. He was sentenced to seven years—six and five years concurrently on the fraud convictions and one year consecutively on the secret commission conviction. Ber was a licensed investment adviser with TD Wealth at the time. “The appellant purchased Blackbird Energy on behalf of his clients, selling millions of dollars of their existing ‘blue chip’ investments to do so,” Friday’s decision read. “Many of these trades put the portfolios into a position that exceeded the clients’ risk tolerances. “Ten days after these transactions were completed, the appellant received a payment of approximately $104,000 from Blackbird Energy.” Friday’s decision said the trial judge’s conclusion “that the payment was consideration for the 2017 share placement” did not “grapple with or reconcile” certain evidence. “The appropriate remedy in this circumstance is a new trial on that count,” court said.
