R. v. Tyskerud, 2013 BCSC 2249

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tyskerud, 2013 BCSC 2249 Date: 20131120 Docket: 68807-4 Registry: Nanaimo Regina v. Graydon TyskerudMatthew Tyskerud Before: The Honourable Mr. Justice B.D. MacKenzie Oral Ruling re s. 684 Application In Chambers Counsel for the Crown: R. GibsonR. Leong (appearing via teleconference)Appearing on his own behalf: G. TyskerudAppearing on his own behalf: M. TyskerudPlace and Date of Trial/Hearing: Nanaimo, B.C. November 19, 2013Place and Date of Judgment: Nanaimo, B.C. November 20, 2013 [1] THE COURT: Mr.

Graydon Tyskerud and his son, Matthew Tyskerud, were convicted in the Provincial Court of BritishColumbia of offences under the Income Tax Act. At the conclusion of a 38-day trial and sentencing submissions that covered at least partof three days, Graydon Tyskerud was found guilty of one count of wilfully evading the payment of income taxes and received a sentenceof 11 months, but that was to be served pursuant to a conditional sentence order, and a fine of $14,186, approximately.

MatthewTyskerud was found guilty of one count of wilfully evading payment of income taxes, and he was sentenced to a six-month conditionalsentence order and a fine of approximately $3,320. [2] Both Graydon Tyskerud and Matthew have appealed their convictions and their sentences.

The application which is presentlybefore this court is for an order, under s. 684 of the Criminal Code, appointing counsel to prepare and argue their conviction appeal andsentence appeals, and for the Attorney General to pay for transcripts, as well as other disbursements and counsel fees; the disbursementsfor transcripts apparently to the tune of approximately $20,000. [3] Section 684(1) of the Code provides that a court may appoint counsel to act on behalf of an accused who is party to an appealwhere, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance,and where it appears that the accused has not sufficient means to obtain that assistance. [4] Subsection (2) of s. 684 provides that where counsel is assigned and legal aid is not granted to the accused, counsel fees anddisbursements shall be paid by the Attorney General. [5] With respect to the present application, in R. v.

Dumas, 2001 BCCA 740, Justice Saunders in the Court of Appeal stated that: The factors to be considered on an application under s. 684 were discussed in Re Baig v. The Queen (1990), (BC CA),58 C.C.C. (3d) 156 [another B.C.

Court of Appeal decision]. [6] The factors that are to be considered pursuant to those authorities are as follows: 1) the appellant's financial ability to retain counsel on his [or her] own behalf; 2) whether legal aid would be granted to the appellant[s]; 3) the level of education of the appellant and his [or her] competency to advance [the] appeal; 4) the complexity of the case; 5) whether assistance of counsel is necessary to marshal the evidence in the case; and 6) whether the case is one in which a term of imprisonment may result.

[ 7 ] In addition, it is well settled, in my view, that the court on such an application must also consider the likelihood of success of the appeal: see R. v. Weismiller , [1994] B.C.J. No. 2656 , as well as R. v. Williams , 2011 BCCA, and R. v. Schiel , 2012 BCCA 1 . [ 8 ] As far as the issue of legal aid funding is concerned, there is evidence before me that, pursuant to a letter dated October 31, 2013, from the Legal Services Society, that legal aid has not been granted for Graydon Tyskerud's appeal.

However, there is no evidence before the court that legal aid funding was applied for and rejected with respect to any application by Matthew for legal aid funding for his appeal, and it would appear, pursuant to subsection (2) of 684, that this, in and of itself, would be sufficient to dispose of his present application.

However, I am prepared to deal with Matthew's application on the same basis as I will deal with Graydon Tyskerud's application, as all of the issues are relevant to Matthew's application as well as Graydon's. [ 9 ] I therefore turn to the first factor that was noted by Justice Saunders in Dumas and the court in Re Baig , that is the appellants' financial ability to retain counsel on their own behalf. [ 10 ] On this point, I agree with the Crown that, given the material that has been filed or the lack thereof, there are unanswered questions as to the appellants' financial position.

On this point, the Crown has pointed out the relatively modest incomes reported by Graydon and Matthew Tyskerud on their respective 2010, 2011, and 2012 tax returns, returns which have just recently been filed pursuant to the conditions of the CSO, disclosing modest incomes and, based on those returns filed by the appellants, that no income tax is payable by them. [ 11 ] The Crown says this material has not been confirmed by Canada Revenue, given the absence of notices of assessment. [ 12 ] The Crown also obtained documentation which establishes that Graydon Tyskerud's wife owns property in this general area that was assessed in 2013 at $277,000.

Moreover, the documentation establishes that Graydon Tyskerud originally owned the matrimonial home in joint tenancy with his wife with a small mortgage, but that this home was transferred to Mrs. Tyskerud's name alone in 1998. In addition, a mortgage was obtained on this property in 2005 in the amount of approximately $200,000. [ 13 ] Initially the Crown submitted that there was no affidavit material supplied explaining where this not insignificant amount of money went.

The Crown says this evidence further supports its position that the appellants have failed to establish that they meet the financial eligibility criteria to qualify for the appointment of counsel under 684 of the Criminal Code . [ 14 ] In response, even though neither appellant provided sworn affidavit material on this particular issue, in submissions Graydon Tyskerud stated the $200,000 was used to purchase a small retail establishment that was to be operated by his spouse, a venture which apparently is no longer in operation. [ 15 ] However, as I have noted, the appellants have filed no affidavit evidence as to their expenses or assets, but have simply filed the tax returns, which they say is all the income they have earned in the years 2010, 2011 and 2012.

There is no further affidavit evidence as to their financial circumstances. [ 16 ] In addition, both applicants have worked in the past and there is no evidence that they are not capable of earning income, especially Graydon Tyskerud, who has alluded to his successful electrical business, and who has earned, as has Matthew, what the Crown submitted during the Provincial Court trial was indeed income. [ 17 ] Where persons seek the assignment of counsel and the payment of fees and disbursements pursuant to s. 684(1) of the Code , in my view it is incumbent on them to file sufficient affidavit evidence in order to establish they do not have sufficient means to obtain legal assistance: see R. v.

Schiel , 2012 BCCA 1 . [ 18 ] The onus is on the applicants to establish that they do not have sufficient means to obtain legal assistance.

Notwithstanding the income tax returns, given the relatively scant material filed by the applicants, I am satisfied this material falls short of meeting this onus. [ 19 ] However, even though this conclusion is sufficient, pursuant to the provisions of 684, to dispose of the application, in my view it is appropriate to consider the first question, that is whether it is in the interests of justice to grant the appellants' application. [ 20 ] The first factor to consider with respect to this aspect of the test outlined in s. 684, is to consider whether the applicants, especially Graydon, who primarily conducted the trial and this particular application before this court on behalf of both himself and his son, has sufficient competency to advance the appeals. [ 21 ] As the Crown has submitted, the Tyskeruds, in my view, cannot be characterized as completely uneducated or unsophisticated.

The Crown acknowledges that, while they do not have advanced or post-secondary education, the nature of the numerous pre-trial applications brought by Mr.

Tyskerud in Provincial Court and the quality of their written materials in support of those applications cannot be characterized as uninformed. [ 22 ] The Crown has emphasized that in the course of the proceedings in the Provincial Court the appellants brought approximately 11 applications for disclosure, extension of time to bring applications, the adjournment of the trial, an application challenging the standing of the Attorney General to bring the prosecution, an Askov application for a judicial stay of proceedings on the basis of unreasonable delay, and various other applications, including an application to quash the Criminal Code search warrant on the basis it was not properly issued. [ 23 ] I agree with the Crown that, having regard to all of the circumstances, there is nothing in the reasons for judgment on all of these respective applications that the appellants were not capable of properly bringing and arguing their applications. [ 24 ] Moreover, one only need consider the materials provided by Graydon Tyskerud pertaining to what he submits is an unfit and excessive sentence for both he and his son, in order to conclude that Graydon Tyskerud has a firm grasp of the relevant legal principles at play and the case law that is relevant in advancing his appeal.

[ 25 ] Given the materials before me, I am satisfied that the appellants are capable of arguing their appeals without the assistance of counsel. [ 26 ] At the same time, the Crown submits that the case in Provincial Court was not particularly complex. The Crown says that it is clear the Tyskeruds disagree with the law as it relates to the offences for which they were convicted, but says the law is neither unsettled nor unduly complicated. The complications and the length of the trial, the Crown says, was primarily because of the many, many days of cross-examination of the CRA lead investigator.

The Crown says the trial was not the result of any inherent complexity in the Crown's case or with the ultimate issues that had to be resolved, but rather was because the appellants advanced many lengthy and relatively unique arguments with respect to several defences that they say should be acknowledged by the Provincial Court judge. [ 27 ] Moreover, the Crown says the applicants' own documentation obtained pursuant to the searches are documentation that the appellants clearly can understand, as they were in fact their own documents and in their possession, and it was based on this documentation that the Crown was able to establish that the defendants had earned income which they did not declare nor pay taxes on, and that the case was proven beyond a reasonable doubt.

In these circumstances, I agree with that assessment. [ 28 ] Similarly, many of the witnesses that were called by the Crown dealt with the continuity of the documents relied upon by the Crown in establishing that taxes had been evaded by the appellants. The Crown says that the assistance of counsel, given these circumstances, is not necessary for the appellants to marshal the evidence for the appeal. [ 29 ] The next factor is whether or not a term of imprisonment may result from these convictions.

Both Graydon and Matthew Tyskerud, as I have mentioned, were sentenced to serve a conditional sentence and pay a fine. During submissions, I acknowledged and agreed with Graydon Tyskerud that a conditional sentence can properly be deemed to be a term of imprisonment, notwithstanding the fact that it is served in the community. [ 30 ] However, on this point, the Crown is accurate when it submits that the only possibility for imprisonment in these circumstances is in the event of a breach of the conditional sentence orders or a default in the payment of the fines.

Given the fact that Graydon Tyskerud has successfully completed all his community work service and that Matthew's entire CSO is set to expire shortly, it appears unlikely that there will be any actual term of custody for either Graydon or Matthew as a result of the imposition of the CSOs. [ 31 ] At this point in time, I pause to say that both appellants should be acknowledged for their compliance with all of the conditions imposed on them pursuant to their respective conditional sentence orders. [ 32 ] I now turn to the merits of the appeal gleaned from all of the materials that have been provided, including the lengthy, extensive, and detailed judgment of the Provincial Court judge. [ 33 ] As I have stated, in my view it is well settled that whether or not it is desirable in the interests of justice that counsel be appointed under s. 684 includes a consideration of the merits of the appeal: see R. v.

Williams , 2011 BCCA 85 , and R. v. Donald , 2008 BCCA 316 . [ 34 ] On this point, much of Graydon Tyskerud's testimony, Matthew not testifying at the trial, was referred to in the trial judge's reasons, including Mr. Tyskerud's religious beliefs and views, and views on the relevance and the applicability of the Income Tax Act with respect to persons who hold his views and beliefs. The learned Provincial Court judge also referred to the Alberta Queen's Bench decision in R. v.

Meads when considering several of the defences advanced by Graydon Tyskerud, as well as many other authorities that have considered and dismissed similar arguments and defences that were advanced at trial by the appellants. [ 35 ] There was also extensive reference by the trial judge to Mr. Tyskerud's defence that a man's labour is a gift from God which, in Mr. Tyskerud's submission, is therefore not income within the meaning of the Income Tax Act and therefore not subject to the provisions of the Act . [ 36 ] I have said the trial judge's decision and judgment was lengthy and extensive.

The judgment was 460 paragraphs, over 151 pages. In my view, the trial judge's reasons clearly illustrate he thoroughly and fairly considered all of the arguments advanced at trial by the appellants. [ 37 ] While the Crown acknowledges that the threshold that the Tyskeruds must overcome in terms of the merits of the appeal may not be particularly high, Crown submits that the grounds of appeal are so weak that there is little, if any, prospect for success.

In other words, the grounds simply do not give rise to an arguable appeal. [ 38 ] The Crown submits that the appellants in the material before the court have not been able to point to any reversible error that would entitle them to succeed in their appeal. The Crown submits the appeal is without merit or has little or no chance of success and, as such, it cannot be said that it would be in the interests of justice to appoint counsel. [ 39 ] The Crown has summarized in its argument the grounds of appeal that have been advanced by the appellants.

They are accurate and they have been taken directly from the notice of appeal. The grounds of appeal are as follows:

a) The verdict is not supported by the evidence.

b) The Federal Court has the original jurisdiction to determine taxability. The Provincial Court may make the legal determination that income derives from labour. However, it is not the forum to determine income taxability and to make determinations as to rights to tax or absence of rights of assessments involved. Taxability must be clear cut, obvious, and indisputable. c)

. . . the Court's determination that taxable income deriving from labour is contrary as per sections 2(a & b), 6(2)(b), 7 of the Charter ofRights and Freedoms,

section 4 of The Universal Declaration of Human Rights and Ecclesiastes 3:13 of the King James Bible. This would appear to be relevant with respect to Mr. Graydon Tyskerud's submission that his labour is a gift from God and gifts are notsubject to pacts. d) [The] Right to trial in a timely manner - The Honourable Judge MacCarthy's analysis of time allotment to the accused, Crown andinstitutional delay is not supported by the law nor by the facts. That clearly is reference to the Provincial Court judge's Askov decision.

e) Finally, actions of the Crown and the Honourable Judge Saunders injured the integrity of the administration of justice. [40] Those are the grounds of appeal with respect to the conviction. [41] In addition, the appeal as it pertains to sentence is outlined in the notice of appeal as follows: The sentence is unduly harsh and excessive given our background and the circumstances of the offence. [42] As far as the merits of the appeal are concerned, I agree that the burden on the appellants is not unduly high. In this regard, theapplicants need not show that the appeal will ultimately succeed.

The applicant need only demonstrate arguable grounds of appeal: see R.v. Donald and R. v. Yliruusi, 2011 BCCA 477. [43] However, the applicant has the onus of demonstrating that he or she has an arguable appeal, and where that onus is not met, theappellant will not have met the onus upon him or her to justify the appointment of counsel.

I agree with the Crown that the authoritiesclearly establish that it is not in the interests of justice to appoint counsel where an appeal has no merit, even though some of the otherfactors that are relevant may favour appointment of counsel. [44] In this regard, appreciating that I am not conducting an actual appeal or the merits of the appeal, it is relevant to note the scopeof review of an appeal court when considering the merits of the appeal vis-à-vis the s. 684 application. [45] As Justice Frankel said in Lin in the Court of Appeal, 2008 BCCA 518: In determining whether an appeal is arguable, regard must be had to the applicable standard of review on the proposed appeal. [46] On this point, as the Crown has submitted, Graydon and Matthew Tyskerud in their notice of appeal are asking the court tooverturn their convictions on the basis that the trial judge's verdict was unreasonable.

On this point, as in any appeal, an appeal court inconducting its appellate review must consider all of the evidence: R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190. [47] A verdict is unreasonable only if the evidence is not reasonably capable of supporting the verdict or where the trial judge erredin law or principle or was clearly wrong. [48] While an appeal court must, to some extent, re-examine and re-weigh the evidence, the appeal court will not simply substituteits view for that of the trier of fact.

The question then becomes whether, on the whole of the evidence, the trial judge could reasonablyhave concluded beyond a reasonable doubt that Graydon and Matthew Tyskerud were guilty as charged. [49] The Crown submits in this case the evidence was overwhelming and more than reasonably capable of supporting the verdict.The Crown submits the Tyskeruds have failed to establish that the evidence is not capable of supporting the findings and inferences ofthe trial judge. [50] The Crown also quite properly submits that those findings of fact and the inferences reached by the trial judge are entitled tosubstantial deference on appeal. [51] I agree with the Crown that the totality of the evidence before the trial judge was clearly capable of supporting the findings offact he made and his ultimate conclusion that the Crown had proven the charges beyond a reasonable doubt.

Those findings of fact weresupported by all of the evidence. [52] I also agree the evidence was overwhelming and that the appellants have presented no material that the verdict reached by thetrial judge was perverse or that he made any errors. [53] In these circumstances, it is appropriate to note, as did Justice Garson in Hoskins at paragraph 38, that while "it is true that themerits of an appeal are not always able to be fully 'fleshed out' on an application of this kind", when entertaining the present applicationmade by the Tyskeruds, I am not satisfied that the appeal is an arguable one. [54] I now turn to the appellants' submission that the Provincial Court judge lacked jurisdiction to hear this matter, as outlined in thenotice of appeal. [55] Pursuant to the Supreme Court of Canada decision in Knox Contracting, in my view the trial judge did not commit any error inconcluding he had jurisdiction to hear this particular prosecution. [56] As a result, this ground of appeal, in my view, has no chance of success. [57] The next ground of appeal focuses on the trial judge's conclusion that there was indeed income generated by the appellants'

activities. The Crown has correctly summarized the Tyskeruds' argument on appeal when they say that a determination that income from labour is taxable is contrary to the Charter of Rights and Freedoms , The Universal Declaration of Human Rights , and the King James Bible . [ 58 ] The Crown submits that income for the purposes of the Act is determined by the Act and the jurisprudence that has considered and interpreted the Act .

Reading the trial judge's judgment, I am satisfied he considered fully the appellants' arguments on this point and carefully analyzed and properly applied the legislation and relevant jurisprudence in dismissing this defence.

There was ample evidence to support the trial judge's findings on this issue as well, and as a result I am of the view this ground of appeal has no merit. [ 59 ] Turning to the Tyskeruds' submission that the trial judge erred when he dismissed their application for a judicial stay of proceedings on the basis of unreasonable delay on the part of the Crown in bringing the prosecution to trial, on this point, as noted by the Crown, the trial judge did find there had in fact been delay, and as a result had to determine whether, in all the circumstances, the delay was reasonable.

As a result, the trial judge again carefully analyzed the reasons for the delay and attributed the delay to either the Crown or the defendants, or whether it was attributable to neutral intake. [ 60 ] In my view, there was again sufficient evidence to support the trial judge's findings as to where delay should properly be attributable.

Once again, the Provincial Court judge's reasons are extensive, and in my view he again properly analyzed the delay in light of the principles enunciated in the Supreme Court of Canada decisions in Askov and Morin , including the issue of prejudice to the appellants and their Charter -protected interests pursuant to s. 11(b) . [ 61 ] Given the totality of the trial judge's reasons and his analysis of the law and the circumstances in the case before him, I am satisfied there is little merit to this ground of appeal as well. [ 62 ] Finally, the appellants submit that the Crown and Provincial Court Judge Saunders "injured the integrity of the administration of justice".

It would appear this ground of appeal is based on what occurred in Provincial Court on August 9, 2009. At that time, during an initial appearance by both appellants, Mr. Graydon Tyskerud was arrested and taken into custody when, according to my reading of the transcript, he refused to properly identify himself before Judge Saunders. The trial judge, in his reasons, observed Graydon displayed disruptive behaviour during the court appearance. [ 63 ] Mr.

Tyskerud was taken into custody, but subsequently released, and was on judicial interim release until the completion of his trial and, as he has submitted during his submissions and in his material, apparently without any incident whatsoever. [ 64 ] On this point, the Crown says there is nothing in the material before the court that sets out any error or a specific principle that would warrant consideration by an appeal court. In addition, the Crown says there is no evidence as to what injury was caused to the administration of justice. Even though the notice of appeal on this point is somewhat unclear, Mr.

Tyskerud does state that his s. 7 and s. 9 Charter rights were breached when Justice Saunders issued a warrant and he was taken into custody. [ 65 ] However, in these circumstances, I again must agree with the Crown that there is no evidence before me as to how the administration of justice was indeed injured.

Moreover, I am unable to see how this discrete ground of appeal is relevant to the Tyskeruds' appeal against convictions and sentence and the present application. [ 66 ] As a result, I am satisfied this ground of appeal is without merit and has no chance of success. [ 67 ] In conclusion, given the totality of the evidence presented during the trial and the trial judge's considered analysis of the evidence and his findings of fact, coupled with the materials presented and the submissions of the appellants and the Crown, I am satisfied there is no basis to conclude the convictions were unreasonable or unsupported by the evidence.

In addition, in my view the trial judge properly considered every argument and defence that was advanced by the appellants during their trial. [ 68 ] As a result, and even if I were satisfied that the appellants had established they lack the means necessary to retain counsel for their appeal, I have not been persuaded that the various grounds of appeal have sufficient merit such that they have any prospect of succeeding.

In these circumstances, it is not in the interests of justice that counsel be appointed to assist the appellants in pursuing their conviction appeal. [ 69 ] As a result, the test in s. 684 has not been met and the appellants' applications are dismissed. [ 70 ] I will now turn to whether counsel should be assigned to act on behalf of Graydon and Matthew Tyskerud on their sentence appeals. [ 71 ] In my view, there is insufficient evidence before the court to conclude that it is in the interests of justice to appoint counsel to assist the appellants in pursuing their sentence appeal.

On this point the evidence, in my view, is clear and, as I have already referred to, the appellants had no difficulty in marshalling extensive submissions before the trial judge as to what, in their submission, would have been a fit and proper sentence, including, as noted by the trial judge, reference to approximately 27 relevant cases on sentences pursuant to income tax offences, as well as reference to texts on sentencing and the principles of sentencing now codified in the Criminal Code . [ 72 ] In fact, the written submissions made by Graydon Tyskerud on his application for judicial interim release pending an appeal, or more accurately, his application to stay the conditional sentence orders pending his appeal are, in my view, more thorough and detailed than many submissions advanced by counsel. [ 73 ] In my view, the appellants are more than capable in advancing any submissions as to why, in their view, the sentence imposed by the trial judge was unfit. [ 74 ] As I have said, Graydon Tyskerud's affidavit contains an impressive and thorough analysis of the fundamental principles of sentencing and the relevant case law.

As a result, it is not necessary to determine whether the sentence appeal is likely to succeed. However, given the totality of the circumstances and the submissions made by the Tyskeruds before the trial judge, including the

alternative argument advanced by Graydon on behalf of himself and Matthew, that if a period of incarceration was to be imposed, it should be very short and served by way of a conditional sentence order, I agree with the Crown's conclusion that the respective sentences imposed on the appellants were clearly within the range of sentences given to similar offenders, and in fact could very well be said to be at the low end of the range.

As a result, neither sentence, in my view, would be deemed to be unfit or unduly harsh. [ 75 ] Be that as it may, if the Tyskeruds pursue their sentence appeal, that will be for determination by the judge on appeal. [ 76 ] Given the totality of the circumstances, the materials filed, and the submissions of the appellants and the Crown, I am again not satisfied the applicants have established that it is in the interests of justice that they should have legal assistance in pursuit of their sentence appeal and, as a result, this aspect of the present application is dismissed as well. [ 77 ] As far as payment for the voluminous transcripts that will result from the lengthy trial, for the same reasons that have resulted in my dismissing the appellants' application for the appointment of counsel, I am also not satisfied it is in the interests of justice to order the state to pay for the transcripts of the trial or the sentencing proceedings.

As a result, this final aspect of the appellants' application is dismissed as well. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie