GERALD BERNARD McCULLOUGH APPLICANT - v. -, 2003 SKQB 127

2003 SKQB 127 Q.B.G. A.D. 2003 No. 451, 451A and 451B J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GERALD BERNARD McCULLOUGH APPLICANT - and - LIAN SHUANG-SHII, FU-JUNG LI and LIN YUNG-BIN et al. RESPONDENTS Gerald Bernard McCullough represented himself Anthony B. Gerein for Her Majesty the Queen Tim Huber for Abou-Amarah, Taha Mohammad Shaban FIAT ZARZECZNY J. March 20, 2003 [ 1 ] Gerald Bernard McCullough applies pursuant to s. 81(2) of The Queen’s Bench Act, 1998 , S.S. 1998, c.

Q-1.01 for an order giving directions for payment of an amount recoverable under certain judgments registered with the Court. Because the circumstances are somewhat unique a brief review is appropriate. [ 2 ] Mr. McCullough was charged with and convicted of the criminal offence of fraud. The Crown appealed portions of his sentence seeking a restitution order denied by the trial judge. The appeal was allowed November 7, 2002, with written reasons delivered

November 14, 2002 [2002 SKCA 124 , [2002] S.J. No. 630 (QL) (C.A.) ]. Pursuant to s. 738(1) (

a) of the Criminal Code the Court ordered: [4] ... [T]hat the respondent make restitution to the following named persons by paying to each of them the amount set forth opposite that person’s name: Abou Amarah, Taha Mohamed Shaban $ 31,055.90 Chang, Hseuh-Chiang 31,055.90 Chen, Chao-Ching 31,055.90 Chen, Chih-Hsiang 31,055.90 Chen, Chih-Yen 31,055.90 Chen, Sheng-Chih 31,055.90 Cheng, Tao-En 31,055.90 Chiiu, Chang-Yuan 31,055.90 Chung, Tien-Ching 31,055.90 Hsu, Chien Chan 31,055.90 Khan, Farzana Nisar 31,055.90 Kong, Yau 3,105.60 Kuo, Wei-Hung 31,055.90 Kwok, Wai Chee 31,055.90 Lam, Kang Sang 31,055.90 Lee, Su-Fen 31,055.90 Li, Ta-Han 31,055.90 Lian, Shuang-Shii 31,055.90 Lin, Chi-Jen 31,055.90 Lin, Yung Bin 31,055.90 Liu, Chin Shen 31,055.90 Liu, Yuk Ping 3,105.60 Man, Moon Kan 31,055.90 Ng, Keng Peoh 31,055.90 Saghir, Mohammad 31,055.90 Shaikh, Dr.

Nasira Aziz 31,055.90 Siu, Ka Wah 31,055.90 So, Siu Man 31,055.90 Tsai, Lung-Sheng 31,055.90 Tseng, Chih Ping 31,055.90 Wong, Yin Tin (Lisa) 31,055.90 Yang, Ho Ting 31,055.90 Yang, Shu-Lan 31,055.90 Yu, Sui Chee 31,055.90

TOTAL $1,000,000.00 [ 3 ] Only three people who are beneficiaries of the restitution order have proceeded to register their judgments in the Judicial Centre of Regina, Saskatchewan. Section 741(1) of the Criminal Code provides for the enforcement of a restitution order and it reads as follows: 741

(1) Where an amount that is ordered to be paid under

section 738 or 739 is not paid forthwith, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings. [ 4 ] Mr. McCullough now makes an application pursuant to subsection 81(2) of The Queen’s Bench Act, 1998 . That

section gives the Court jurisdiction to deal only with Saskatchewan registered judgments; namely, the three registrants known to have registered in this jurisdiction to date. Although Mr. McCullough requests the Court to issue a broad order taking into account not only these registered judgments but as well any further or other judgments that might be registered in Saskatchewan or elsewhere, the Court cannot accede to that request because of the limitations identified. [ 5 ] With respect to the merits of Mr.

McCullough’s application it appears implicit in the Court of Appeal’s decision ordering restitution to be made that the Court accepted Mr. McCullough’s submissions including, as they did, his consent to a restitution order and secondly the rational for his position, namely; that he intends to resume business and investment activities from which he hopes to generate significant income or profits to permit him to satisfy his restitution obligations over time. [ 6 ] Mr. McCullough now applies to the Court for directions respecting the orderly payment of the amounts recoverable under the judgments over time.

He submits that installment payments be permitted to allow him the opportunity to generate some capital to support his intended business activities which in turn will generate the $1,000,000.00 dollars required to pay restitution in full. [ 7 ] For the reasons stated by Mr. McCullough and apparently accepted by the Court of Appeal, it does appear that the only possibility Mr. McCullough has to pay some or all of the restitution which he has been ordered to pay is through entrepreneurial efforts.

At the present time he has no possibility of paying the three registered judgments in full totalling $93,167,70 much less the total restitution orders in the sum of $1,000,000.00. [ 8 ] I accept that this is an appropriate case to strike a balance between the interest of the judgment creditors which is to achieve payment in full as soon as possible and the position of Mr.

McCullough who needs relief and some time to generate income or profits permitting him to do so. [ 9 ] In the result I direct that Gerald Bernard McCullough pay to each of the three registered judgment creditors 10% of their judgments, namely, $3,105.59 per year until paid in full. Such payments are to be made on or before December 31 in each year. It is further ordered that Mr. McCullough file with the local registrar of the Court of Queen’s Bench in Regina annually, on or before April 30 in each year beginning 2004, a copy of his income tax return as filed with Canada Customs and Revenue Agency.

The Court also records Mr. McCullough’s undertaking to the Court to provide the Court with annual written confirmation of the amounts and to whom any payments have been made, the same to be provided on or before January 31 every year beginning in 2004. [ 10 ] These filing provisions will permit any beneficiaries of the restitution order who may have an interest to better identify their positions. The Court notes that s. 88(1) of The Queen’s Bench Act, 1998 gives the Court the power to vary or rescind the orders or directions given by it such as the one now issued pursuant to s. 81.

Presumably anyone having an interest, if they should find through these filings that Mr. McCullough is achieving very substantial income levels, may make a future application for accelerated repayments or, for that matter, payment in full. Time will tell. [ 11 ] Although the provisions of this order are applicable only to the three judgments registered, it is hoped that any further or other judgment registrants will consider the provisions of this order and be guided by and voluntarily accept it to avoid a multiplicity of applications and proceedings in the future.

An order conforming with this judgment may issue.

J.