R. v. Leung Date:, 2015 BCPC 119

Citation: R. v. Leung Date: 20150226 2015 BCPC 0119 File No: 29523-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA ( Criminal ) REGINA v. IVAN YIU FAI LEUNG EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: D. Meneley Counsel for the Defendant: G. DelBigio, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: February 26, 2015

Date of Judgment: February 26, 2015 [ 1 ] THE COURT: Let me start by acknowledging the nature of the matter before me. You have pled guilty to two charges relating to the wilful evasion or attempt to evade compliance with the Income Tax Act and the failure to remit GST. [ 2 ] The Crown proceeded summarily. The two lawyers have done a lot of work for this sentencing. They have prepared an agreed statement of facts. They have also agreed on what they submit would be the appropriate sentence in your case.

I will deal with that in a moment. [ 3 ] My role as the sentencing judge is to ensure that you receive a fit sentence. The Criminal Code , and various decisions that have been made applying the Criminal Code to sentencing cases, set out the objectives of sentencing, the factors to be considered, and a number of other factors that ought to guide judges in arriving at a fit sentence. [ 4 ] All of the objectives of sentencing are important, but the three most important objectives, in terms of the practical aspects of fashioning a fit sentence, are the following: (

a) A sentence must be sufficient to deter you from committing another offence. It must also be such that it will deter others who may come to know of this case. (

b) A fit sentence must denounce your unlawful conduct. It is society's way of saying to you that what you did was wrong and there are consequences. However, I must also not forget there are other objectives. (

c) There is a third objective that is also very important, that is rehabilitation. The sentence I impose cannot be such that it undermines the efforts you may have made leading to your plea and the efforts you will continue to make to rehabilitate yourself. Obviously, rehabilitation is the best result society can hope. If as a result of this transgression, you go back to living the law-abiding life it appears you led before this transgression, then the justice system and the sentencing process have worked. [ 5 ] Sentencing cases and the Criminal Code make it clear that sentencing is an individualized process.

Although I can take into account what has happened in other similar cases, at the end of the day, the only person who is being sentenced today is you. Therefore, I have to consider your personal circumstances, the circumstances of the offence, and the effect of the offence on the public, if any, or on other people. [ 6 ] I sometimes observe, on tax-related offences, that people forget there is a victim which is the Canadian taxpayer. In paying taxes, those of us who work or have a business, put money into government coffers. That money is then used to provide services to Canadians.

We may not always agree that our tax dollars are wisely spent, but that is the intent. So if people do not pay their taxes or do not remit the GST they are supposed to collect, it means that some or all of us, to one degree or another, are deprived of a benefit because that money has not gone into the government's accounts and cannot be used to provide services. [ 7 ] In sentencing you, I also have to consider aggravating and mitigating factors. The aggravating factors in your case are twofold -- the amount of taxes that were evaded and the GST that was not remitted.

More importantly in my view, is the fact that, to an extent, there is a breach of trust. [ 8 ] In Canada and in Canadian provinces, citizens are expected to pay their taxes. It is a self-reporting system. Both Mr. DelBigio and Mr. Meneley have mentioned this in their joint submission. The tax system is based on individuals doing their duty and being honest and reporting accurately. It is obvious that the Canada Revenue Agency cannot assess and audit every person and every business. So that element of trust, individual trust in your case, has been breached. [ 9 ] I now have to turn to the mitigating factors.

The first factor is that the Crown has concluded this case is not at the worst end of the spectrum. It has proceeded summarily. [ 10 ] The second factor is that you have entered a guilty plea. That is important for several reasons, two of which are: (

a) it shows you have taken responsibility; (

b) you have saved the taxpayer a lot of money because the court system and the people who staff it are paid for by the taxpayer. If this matter had gone to trial, I suspect it would have been a two, three, or four-day trial, maybe with Mr. DelBigio involved even five days. You have saved the money that would have been spent in going to trial by pleading guilty. [ 11 ] The other mitigating factors relate to your personal circumstances. They have been set out. First of all, I assume from the fact no one has mentioned it that you have no criminal record. This is a first offence. [ 12 ] MR.

DELBIGIO: That is correct. [ 13 ] THE COURT: Is that correct? Thank you. [ 14 ] I would not say you are in your senior years, but you are a mature individual who should have known better. You are, sadly, a recent widower. You have had some health challenges. It appears you have been a good provider for your family. You have been in Canada, as I understand, since 1973-1974. You have contributed to the community. These are all positive mitigating factors. [ 15 ] What I will consider next is the fact there was a joint submission, namely, a position that both your lawyer, Mr. DelBigio, and Mr.

Meneley on behalf of the Crown have put forward. Our Court of Appeal has made it clear, in a number of decisions from which I will not quote, that when judges are faced with a joint submission, they do not have to accept it if they feel it does not reflect an appropriate sentence for the offence in question. However, the Court of Appeal has noted judges must take into account that, often, joint submissions come about because of discussions between the lawyers. If I can put it in the vernacular, a deal has been made.

If the sentence proposed is within the range of sentences that the courts have imposed on other people in the past for a similar offence, the

sentencing judge should be careful not to tinker unduly. The Court of Appeal did not say "tinker," that is how I interpret the gist of its decisions. [ 16 ] Let me turn to what is being proposed in this case. The sentence jointly proposed is that you be fined 75 percent of the amount of taxes that were evaded on the two charges. That would amount to a fine of $241,061. My understanding is that fine will be paid fairly shortly. At the moment the money for the fine is in Mr.

DelBigio's trust account, and it can be paid on or before March 5, 2015. [ 17 ] The other aspect of the proposed sentence is that you would be bound by a conditional sentence order. A conditional sentence order is basically a jail sentence, served in the community. There are a number of conditions that have been proposed. Some of them would apply for 20 months and the others would apply for -- it is 20 months altogether, I believe -- is that how you have split it, 20 months altogether and then for the -- [ 18 ] MR. MENELEY: Yes. [ 19 ] THE COURT: -- first 12 months there are certain restrictions.

Then those restrictions are loosened somewhat for the last eight months. [ 20 ] Based on cases I am aware of because I preside in these courts on a regular basis, although we do not hear tax related cases every day, I am satisfied that the sentence jointly proposed is well within the range of an appropriate sentence for the two offences to which you pled guilty. Accordingly, I am going to accept the joint submission. [ 21 ] I will set out, for the purpose of the record, that this is an appropriate case for a jail sentence.

However, given all of the circumstances, it is appropriate that you serve that jail sentence in the community and not in real jail. I am imposing a conditional sentence order for a period of 20 months. The conditions you will be bound by during that time are as follows. [ 22 ] You must keep the peace and be of good behaviour. [ 23 ] You must appear before the court when required to do so by the court. [ 24 ] You must report to a conditional sentence supervisor at 275 East Cordova Street in the City of Vancouver, Province of British Columbia, no later than -- It says 4:30 p.m.

Because of the construction that is going on, probation services are appreciative if people attend before 3:30 p.m. [ 25 ] MR. MENELEY: Yes. [ 26 ] THE COURT: -- so would it be acceptable if I change that to 3:30 p.m.? [ 27 ] MR.

DELBIGIO: Thank you. [DISCUSSION] [ 28 ] THE COURT: Before 3:30 p.m. on February 27, 2015, and thereafter as directed - I have changed the wording slightly - by the supervisor. [ 29 ] The next condition is that you must remain in the Province of British Columbia unless written permission to go outside of the Province of British Columbia is obtained from the court or from the supervisor. [ 30 ] The next condition, you must notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 31 ] During the first 12 months of this order, you must be within your residence, which is 1601-7371 Westminster Highway, Richmond, British Columbia, at all times - this is basically a house arrest provision - except: (

a) to attend medical appointments; (

b) to comply with the reporting conditions in this order; (

c) to attend a hospital in case of a medical emergency for yourself or that of a member of your family; (

d) from 6:00 a.m. until 3:00 p.m., each Saturday and Sunday to perform personal errands. [DISCUSSION] (

e) at other times with the written permission of your supervisor which must be carried on your person. [ 32 ] The next condition, for the final eight (8) months of this order, you must not be outside of your residence between the hours of 11:00 p.m. and 6:00 a.m. (this is a curfew condition) except for medical emergencies or with the written permission of your supervisor which must be carried on your person. [ 33 ] Next condition, you must present yourself at the door of your residence upon the request of a peace officer, supervisor, or public officer to confirm your compliance with the provisions of this order. [ 34 ] The next condition, you must not consume any alcohol or consume any illegal drugs while this order is in effect. [ 35 ] Finally, you must carry a copy of this order on your person at all times when outside of your residence.

[ 36 ] I note that the victim fine surcharge does not apply. With respect to the payment of the fine, have the arrangements been made with Mr. Meneley as to how that will be done? [ 37 ] MR. MENELEY: Yes, and Mr. DelBigio can correct me if I am wrong, but the money for the fine is either in the trust account of Thorsteinssons or it is in my friend's pocket in the form of a bank draft. This is kind of a last-minute event -- [ 38 ] THE COURT: All right. [ 39 ] MR. MENELEY: -- and so we are simply giving it a week to allow time for it -- [ 40 ] THE COURT: Just to make sure that it can be processed.

All right. [ 41 ] MR. MENELEY: Yes. [ 42 ] THE COURT: All right. Anything further to be addressed? Are there any counts that have to be stayed or was that already done. [ 43 ] MR. MENELEY: I believe it was not done, and then we will be -- [ 44 ] THE COURT: Any further counts to be stayed? [ 45 ] MR. MENELEY: Yes, one through five and seven should be -- stays should be entered. Thank you. [ 46 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED]