R. v. Tyskerud Date:, 2013 BCPC 277

Citation: R. v. Tyskerud Date: 20130711 2013 BCPC 0277 File No: 68807-3-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRAYDON TYSKERUD MATTHEW TYSKERUD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: R. Gibson Appearing on their own behalf: Graydon Tyskerud and Matthew Tyskerud Place of Hearing: Nanaimo , B.C.

Date of Judgment: July 11, 2013 Introduction [1] After 38 days of trial conducted over a period of several months commencing on August 21, 2011, and for the reasons set out inmy lengthy reasons for judgment cited as R. v. Tyskerud, [2013] B.C.J. No. 255, 2013 BCPC 27, 2013 D.T.C. 5049, rendered onFebruary 14, 2013 (the "Trial Judgment"), I convicted the accused Graydon Tyskerud and his son Matthew Tyskerud of the followingoffences under the Income Tax Act ("ITA"). [2] Graydon Tyskerud was found guilty: (

a) on Count 1, for the periods between December 31, 2002, and June 18, 2007, of failing to report taxable income of $109,837.53 andthereby wilfully evading the payment of taxes thereon in the amount of $14,186.22, contrary to s. 239(1)(

d) of the Income Tax Act; (

b) on Count 2, between December 30, 2003, and June 18, 2004, that he did make, participate in, assent to, or acquiesce in makingfalse or deceptive statements in his T1 individual tax return for the 2003 taxation year by understating his taxable income in the amountof $33,845.26, contrary to s. 239(1)(

a) of the ITA; (

c) on Count 3, between October 25, 2005, and November 4, 2005, that he did participate in, assent to, or acquiesce in making falseor deceptive statements in his T1 individual tax return for the 2004 taxation year by understating his taxable income in the amount of$45,751.47, contrary to s. 239(1)(

a) of the ITA; (

d) on Count 4, between June 24, 2007, and July 4, 2007, that he did make, participate in, assent to, or acquiesce in the making of falseor deceptive statements in his T1 individual tax return for the 2005 taxation year by understating his taxable income in the amount of$30,240.80, contrary to s. 239(1)(

a) of the ITA. [3] Matthew Tyskerud was found guilty on Count 6, between December 31, 2003, and May 1, 2007, for the taxation years 2004 to2006 inclusive, of failing to report taxable income of $53,588.07, and he did thereby wilfully evade the payment of taxes thereon in theamount of $3,320.82, contrary to s. 239(1)(

d) of the ITA. [4] Count 5, being a charge against Graydon Tyskerud of wilfully evading taxes imposed by the Excise Tax Act ("ETA") for theyear 2006, contrary to paragraph 327(1) of the ETA, was stayed at trial. [5] At the outset of the trial, Crown was alleging that for Graydon Tyskerud, with respect to Count 1, the tax evaded was$27,066.67 on unreported taxable income of $190,909.81 for the taxation years 2003 to 2006; on Count 2, that the understated taxableincome for the 2003 taxation year was $40,305.21; on Count 3, the understated taxable income for the 2004 taxation year was$56,775.91; and on Count 4, the understated income was $45,712.49 for the 2005 taxation year. [6] Similarly, Crown was, at the outset, alleging that Matthew Tyskerud wilfully evaded $8,990.97 of income tax by failing toreport $86,907.76 for the taxation years 2004 to 2006. [7] Graydon and Matthew Tyskerud have, since the outset in August of 2008, been self-represented throughout the proceedings,including the trial, and throughout the numerous pre-trial appearances and pre-trial applications, being approximately 21 in number. [8] At the outset of the sentencing portion of the trial, Crown submitted that conditional stays should be directed on GraydonTyskerud's convictions relating to Counts 2, 3, and 4 in accordance with the principles in R. v.

Kienapple, (SCC), [1975]1 S.C.R. 729. [9] Crown proceeded summarily on these charges. Therefore, under s. 239(1)(

f) and (

g) of the ITA, anyone convicted summarilyof an offence under s. 239(1), in addition to any penalty otherwise provided, is liable to, under paragraph 1(f), "a fine of not less than50%, and not more than 200%, of the amount of the tax that was sought to be evaded" or, under paragraph 1(g), "both the fine describedin paragraph 239(1)(

f) and imprisonment for a term not exceeding 2 years." [10] I heard oral submissions on sentencing on April 23, 2013, May 1, 2013, and May 14, 2013, which days were taken up mostly byCrown and Graydon Tyskerud, on his own behalf and, in part, on behalf of Matthew Tyskerud. After having Matthew Tyskerud start hisoral submissions late on May 14, 2013, I suggested, and it was agreed, that Matthew Tyskerud would complete his submissions by wayof written submissions. Those were filed on May 21, 2013. Crown's written Reply Submissions on Sentence was filed June 12, 2013. [11] A

summary statement of Crown's position is set out in paragraphs 92 and 93 of Crown's written reply: [92] In all of the circumstances, the Crown's position is that a period of four months of incarceration and a fine equal to 100% of thetaxes evaded, being $14,186.22, be imposed with respect to Graydon Tyskerud. The proposed time to pay the fine is 12 months. [93] The Crown's position is that a period of two months of incarceration and a fine equal to 100% of the taxes evaded, being $3,320.82,be imposed with respect to Matthew Tyskerud.

The proposed time to pay the fine is 12 months. [94] If the Court sees fit to impose conditions, the Crown wishes to make oral submissions as to appropriate terms of sentence. [12] The positions of Graydon Tyskerud and Matthew Tyskerud have not been as concisely distilled as Crown's position by way of a

number of succinct paragraphs. However, I understand their position to be summarized as follows: 1. Neither of the accused should be subject to incarceration for their respective offences. 2. Graydon Tyskerud proposes that he complete 150 hours of community work service and obtain a conditional discharge upon completion of those hours. 3. Matthew Tyskerud proposes that he complete 40 hours of community work service and obtain a conditional discharge upon completion of those hours. 4.

Graydon Tyskerud, in the alternative, proposes that any fine payable by Graydon Tyskerud should be less than the minimum prescribed fine and subject to an alleged credit available to Graydon Tyskerud in the amount of $2,921.79. As I understand it, this credit flows from civil collection proceedings undertaken by Canada Revenue Agency ("CRA") against him. 5.

Matthew Tyskerud, in the alternative, proposes that any fine payable by Matthew Tyskerud should be less than the minimum prescribed fine and subject to an adjusted credit amount that has been calculated by him, leaving only the amount of $173.01 owing by him; again that credit adjustment is based on collection proceedings undertaken by CRA against him. 6.

In the further alternative, I understand that Graydon Tyskerud and Matthew Tyskerud submit that any period of incarceration that is imposed upon either of them should be of a very short duration and should be served in the community pursuant to a conditional sentence order made pursuant to s. 742.1 of the Criminal Code . Circumstances of the Offence [ 13 ] The circumstances of the offences are clearly set out in the Trial Judgment.

I do not intend to review those circumstances in any great detail. [ 14 ] During the charge periods, Graydon Tyskerud operated his electrical contracting and building and equipment maintenance business as a sole proprietor and then through his company known as Graydon Tyskerud/Elite Service Inc. ("Elite Service Inc.") and then once again as a sole proprietor. He regularly filed income tax returns up to and including the 2001 taxation year. Little or no income was reported on his 2002, 2003, 2004, and 2005 income tax returns.

T2 corporate returns for Elite Service Inc. for its 2002, 2003, and 2004 financial and taxation years were not filed until January 2008 following formal demand being made by CRA. Business losses were reported for the first two years of operation. Net income was reported for the 2004 financial and tax year-end in the amount of approximately $46,300.

Those filings showed no direct wages or benefits as part of the cost of sales and no employee benefits as part of the operating expenses of Elite Service Inc. [ 15 ] Initially, Graydon Tyskerud and subsequently Matthew Tyskerud came to the attention of CRA in or around 2006, which resulted in further investigations by CRA and the start of extensive correspondence with them.

Based on a number of indicia, it did not take long for CRA officials to characterize them as "tax protestors," being a term they utilize to describe diverse groups or individuals who seek to avoid income tax obligations without any proper legal foundation. [ 16 ] Various civil proceedings were commenced against Graydon and Matthew Tyskerud by CRA in 2007. [ 17 ] Around 2002, Graydon Tyskerud and sometime later, to a much lesser extent, his son Matthew Tyskerud attended and participated in courses put on by Paradigm Education Group ("Paradigm") founded by Russell Porisky.

The central focus of the programs put on by Paradigm was to teach methods and theories for evading income tax using what have been held by the courts to be nonsensical theories of natural persons. A large number of the students of Paradigm and Russell Porisky have been charged and successfully convicted of income tax evasion matters in recent years. Many of those convicted have been sentenced to custodial sentences. [ 18 ] Graydon Tyskerud's association with Paradigm was fairly short-lived.

However, Graydon Tyskerud developed a number of his own theories and beliefs which he said had a religious foundation and which were the basis for him deciding that he was not earning taxable income but, rather, he was receiving non-taxable gifts or what he described as "gifts for the good of his labour" or "gifts from God." [ 19 ] He also developed his theory that monies received by himself and by Matthew Tyskerud pursuant to a "compensation for contract for hire," being a private contract between Elite Service Inc. and Graydon Tyskerud or Matthew Tyskerud or a patron, was not actually taxable income from a source that made it taxable income.

He advanced beliefs based on notions of what were described as legal fictions and private persons. [ 20 ] The arguments advanced by Graydon Tyskerud in his evidence were analyzed in the Trial Judgment partly against arguments that have been rejected by several courts and have been advanced by individuals who are described as "Organized Pseudolegal Commercial Argument litigants" and identified under the acronym "OPCA litigants" in Meads v.

Meads , 2012 ABQB 571 . [ 21 ] On the basis of this analysis and for other reasons stated in the Trial Judgment, I rejected Graydon Tyskerud's arguments which I found to be arguments that had been previously rejected by courts that had dealt with them or versions of them in other OPCA litigant cases. [ 22 ] Graydon Tyskerud also contended that significant amounts of what he received from Elite Service Inc. were in fact repayments of shareholder loan amounts that he had made to Elite Service Inc. and that numerous personal expenses paid on his behalf by Elite Service Inc. were either business-related expenses or part of his receipt of non-taxable gifts.

I rejected this evidence and these arguments for the many reasons outlined in my Trial Judgment. [ 23 ] Matthew Tyskerud apprenticed, trained, and became qualified as an electrician and then carried on his own business as a sole

proprietor in conjunction with his father's business operations. Matthew Tyskerud never filed any income tax returns for the charge period nor did he testify at trial. I found that based upon the evidence before me, Crown had proven the required elements of the offence against Matthew Tyskerud. I rejected the defence of a mistaken belief in law and, in the alternative, found him to be wilfully blind as to the requirements to file income tax returns and to report his taxable income.

The Offender Graydon Tyskerud [ 24 ] A pre-sentence report on Graydon Tyskerud was ordered and prepared by Susan Knoss and completed April 16, 2013. I understand that a two-hour meeting with Graydon Tyskerud was held prior to the preparation of the pre-sentence report. The pre- sentence report provides some background information on Graydon Tyskerud. [ 25 ] Graydon Tyskerud is married to Rosie Tyskerud and has been since 1975. They have three adult children. They moved to Nanaimo in 1979. Graydon Tyskerud trained as an electrician at Saskatchewan Technical Institute in Moose Jaw.

He completed his electrical apprenticeship around 1981. He initially worked as an employed electrician and then latterly as a self-employed electrician in his own business. Based upon the evidence I heard at trial, Graydon Tyskerud is an industrious and hardworking individual. [ 26 ] Graydon Tyskerud has no prior criminal convictions or prior convictions under the ITA. [ 27 ] Under the heading "Attitude and Understanding Regarding Offence" appears a chronology of some of the events that have given rise to the difficulties that Graydon Tyskerud and his family have encountered with CRA.

It also sets out information concerning Graydon Tyskerud's beliefs which were the subject of his extensive evidence at trial and details, in

summary form, of some of the arguments that he made at the trial of this matter. [ 28 ] The pre-sentence report references Graydon Tyskerud's Christian beliefs based on the Bible and his learning from it. [ 29 ] The pre-sentence report offers the following comments about Mr. Graydon Tyskerud: Mr. Tyskerud states that he is willing to comply with the laws of man so long as these are not in conflict with the laws of God.

He is willing to pay restitution if the court orders him to and understands that he could face a custodial sentence as disposition in these matters. [ 30 ] Having received the pre-sentence report, Graydon Tyskerud wrote to Ms. Knoss on May 7, 2013, regarding what he considered to be inaccuracies within the pre-sentence report. [ 31 ] Other information concerning the background of Graydon Tyskerud was made available to me through the trial and on submissions. [ 32 ] Graydon Tyskerud has been on judicial interim release since August 19, 2009.

This arose out an appearance before the presiding judge at an early appearance on these charges, at which time Graydon Tyskerud displayed difficult and untoward behaviour in front of that judge. I can say that throughout my involvement in his charges, Graydon Tyskerud has behaved appropriately before me. [ 33 ] According to exhibits introduced at sentencing, CRA is claiming against Graydon Tyskerud a balance of $102,739.73 for tax arrears, interest, and penalty as of May of 2013 for the tax years 2000 to 2006. [ 34 ] CRA has completed an initial assessment for the years 2007 and 2008.

Graydon Tyskerud has apparently not filed income tax returns for the years 2009 to 2013. The amounts claimed by CRA for the years 2004, 2005, and 2006 are presently under appeal. [ 35 ] In addition, CRA has a claim for GST/HST arrears and interest against Graydon Tyskerud in the amount of $8,757.95. There is a further claim against Elite Services Inc. for corporation income tax arrears of $5,579.09. [ 36 ] CRA has been methodical and unwavering in its civil proceedings against Graydon Tyskerud in its quest to recover amounts alleged to be owed and has executed against his assets.

CRA has successfully utilized a number of collection tools available to them, including third party demands and seizure of assets. It is likely that this has negatively impacted on Graydon Tyskerud's business operations and on his business prospects. I understand that Graydon Tyskerud seeks to appeal his various civil tax matters through the administrative appeals process and appearances before the Tax Court. [ 37 ] No voluntary payments to CRA have been made by Graydon Tyskerud. [ 38 ] There is little in the way of evidence before me to indicate what assets, if any, Graydon Tyskerud possesses.

He resides in a home owned by his spouse. His submission is that he has few assets, and his present financial circumstances, exacerbated by CRA's past and present collection activities against him, make the payment of any fines and penalties arising out of these proceedings very difficult. [ 39 ] From his evidence and his submissions, it is clear that Graydon Tyskerud believes he is being persecuted and prosecuted unfairly by CRA. The Offender Matthew Tyskerud [ 40 ] A pre-sentence report on Matthew Tyskerud was ordered and prepared by Lawrence Campbell and completed April 15, 2013.

Again, I understand that a two-hour meeting with Matthew Tyskerud was held prior to the preparation of his pre-sentence report. [ 41 ] The pre-sentence report provides much more background information on Matthew Tyskerud. There is also information available to me from the trial evidence of Graydon Tyskerud. [ 42 ] Matthew Tyskerud, of course, is the son of Graydon Tyskerud. He is 31 years of age with no reported health issues. Matthew

reports a stable and supportive upbringing. He has no criminal convictions or convictions under the ITA prior to the matters presentlybefore the court. He is one credit short of securing his grade 12 diploma. He completed a four-year apprenticeship as an electrician in2005 and has worked continuously in that industry from at least the time he entered into his apprenticeship. [43] Matthew Tyskerud married his wife, Julie, in 2007. They have two children ages four and a newborn who is five months ofage. They live in Matthew's mother's home without paying formal rent but assist in payment of household expenses.

They apparentlyhave a loving and supportive marriage. [44] Based upon the pre-sentence report and upon the evidence I heard at trial, I understand that Matthew Tyskerud is also anindustrious and hardworking individual.

He is described by a reference spoken to by Lawrence Campbell as being "generous" and by hiswife as being one who "helps out people in need." [45] Throughout the pre-trial and trial proceedings of this matter, Matthew Tyskerud's conduct before me has been appropriate. [46] Matthew Tyskerud's pre-sentence report provides, under the heading "Attitude and Understanding Regarding Offence," thefollowing statements: Specific to the index offence, Matthew stated, "I figured they would find us guilty from the get-go." [47] He described the guilty verdict as a "copout answer" and stated, "I still don't believe I did anything wrong." Matthew stated,"For me to be found guilty and for that guilt to be felt, I need to be told why." He claimed, "If I am guilty, tell me clear and why," and "IfI had all my questions answered, had that feeling of guilt, then I would pay, as I am wrong." Matthew said, "I'm not saying I'm right orwrong.

I think I am right; does it make me wrong" and further stated, "I want information. Don't just tell me I'm wrong. Tell me how Iwas wrong. Teach me. Educate me.

Show me." Matthew advised, "Bottom line, I want education," and "If I am found guilty, I am finewith whatever judgment; however, I want a real understanding of why." [48] Both in the pre-sentence report and in oral submissions, Matthew Tyskerud indicated that he subscribes to the theory that thepayment of income tax is not a matter of personal responsibility for him since by not doing so there is a "minimal impact." He is of theview that he does not receive any benefits generated from income tax.

When I questioned him about the publicly funded education thathe would have received as part of his electrician's training at Camosun College, his response was to the effect that he paid what he wasasked to pay. [49] I understand that he shares the views that I heard expressed by his father, Graydon Tyskerud, in evidence, that by makingpayment of sales tax, gas taxes, and GST, that he is making his contribution to the public purse.

According to him, exhibits introduced tosentencing, CRA is claiming against Matthew Tyskerud a balance of $48,743.46 for tax arrears, penalties and interest as of May of 2013for the tax years 2000 to 2006. CRA has apparently formally demanded that Matthew Tyskerud file his income tax returns for the taxyears from 2007 to 2011 inclusive.

CRA has re-assessed two of his initial assessments made by CRA for the 2004 and 2005 tax years. [50] In addition, CRA has, by an assessment, claimed GST/HST arrears, penalty, and interest against Matthew Tyskerud and hisproprietorship, MT Services, for the past several years in the amount of $41,567.99. [51] No voluntary payments have been made to CRA by Matthew Tyskerud. [52] CRA has also been methodical and unwavering in its civil proceedings against Matthew Tyskerud in its quest to recoveramounts alleged to be owed by him and has executed against his assets.

CRA has successfully used a number of collection toolsavailable to them, including third party demands and seizure of assets. It is likely that this has also had a negative impact on MatthewTyskerud's business operations and his business prospects. It is unclear as to whether Matthew Tyskerud seeks to appeal his various civiltax matters through the administrative appeals process and appearances before the Tax Court. [53] There is little in the way of evidence before me to indicate what assets, if any, Matthew Tyskerud possesses. He resides in ahome owned by his mother.

His submission, like his father's, is that he has few assets, and his present financial circumstances areexacerbated by CRA's past and present collection activities against him; therefore, making the payment of any fines and penalties arisingout of these proceedings will be very difficult. [54] From his submissions, it is clear Matthew Tyskerud believes he is being persecuted and prosecuted unfairly by CRA. Crown Submissions [55] Crown has referred me to and relies upon the following cases and authorities as part of its submission: 1. Knox Contracting Ltd. v. Canada, (SCC), [1990] 2 S.C.R. 338 ("Knox"); 2. R. v.

Au, 2011 BCSC 75 ("Au"); 3. R. v. Loosdrecht, 2009 BCPC 196 , 2009 BCPC 0196 ("Loosdrecht"); 4. Meads v. Meads, supra ("Meads"); 5. R. v. Sydel, 2007 BCPC 486 ("Sydel"); 6. R. v. Amell, unreported, Provincial Court of Saskatchewan, Informations No. 45761852, 45761853, Moose Jaw, SK, November9, 2010 ("Amell");

7. R. v. Amell, 2012 SKQB 87 ("Amell SKQB"); 8. R. v. Porisky, 2012 BCSC 771 ("Porisky"); 9. R. v. Kobelt, unreported, Provincial Court of British Columbia, File No. 594-1, Vancouver, B.C., December 8, 2011 ("Kobelt"); 10. R. v. Kobelt, unreported, Supreme Court of British Columbia, Docket No. 25960, Vancouver, B.C., May 4, 2012 ("KobeltBCSC"); 11. R. v. Chobotar, unreported, Provincial Court of Manitoba ("Chobotar"); 12. R. v. Luoma, 2010 BCSC 1600 ("Luoma"); 13. R. c. Coffin, 2006 QCCA 471 ("Coffin"); 14. R. v. Turnnir, 2007 BCPC 118 , 2007 BCPC 0118 ("Turnnir"); 15. R. v.

Jung, unreported, Provincial Court of British Columbia, File No. 800-1, Vancouver, B.C., November 23, 2011 ("Jung"). 16. R. v. McCartie, 2012 BCSC 928 ("McCartie"); 17. R. v. Klundert, 2011 ONCJ 45 ("Klundert Appeal"); 18. R. v. Tyskerud, 2011 BCPC 495 , 2011 BCPC 0495, 2011 B.C.J.

No. 2743 ("Tyskerud 2011"). [56] In their submissions, Crown characterizes Graydon Tyskerud as the leader and teacher of Matthew Tyskerud and MatthewTyskerud as an enthusiastic follower in their OPCA litigant fraudulent scheme to evade income tax. [57] Crown submits that both of the accused continue to hold the very OPCA views that resulted in activities that have given rise totheir convictions.

This conclusion can be reached based upon Graydon Tyskerud's evidence at trial, from the information contained inthe pre-sentence report, and from the submissions that have been made by the accused. [58] Crown also points to my analysis and my findings in paragraphs 305 to 359 of the Trial Judgment regarding the OPCA-typearguments advanced and relied upon by the accused. [59] Crown says that from the pre-sentence reports and from defence submissions, it is clear that neither of the accused have anyinsight into their offences.

In fact, it is described as a "shocking lack of insight." They blindly hold to their beliefs and are defiant whenthey attempt to place conditions upon accepting the law. [60] Matthew Tyskerud is characterized as cavalier in the admission contained in his pre-sentence report that he has never paidtaxes. [61] Therefore, the principles of sentencing enumerated in s. 718 of the Criminal Code should be paramount in this case and caseslike it, namely, to denounce unlawful conduct and to provide specific and general deterrence.

Crown submits that a conditional sentenceorder does not provide adequately to achieve these principles. [62] In Crown's view, there must be significant denunciation of the fraudulent type of behaviour that accompanies income taxevasion. Specific deterrence is necessary in order to get each of Graydon and Matthew Tyskerud to report their income and pay taxesand to ensure that they are reporting honestly and accurately. [63] General deterrence is necessary, says Crown, to provide the strong response to OPCA litigants and the so-called "detaxers" whoform part of the "tax protester" movement as analyzed in Meads.

Such general deterrence is essential for the OPCA litigants themselvesin order to get them to recognize they are on a dead-end and ruinous path by following these concepts.

This general deterrence is alsoessential for the good of the general public in order to contain the significant financial cost to the CRA and the federal government indealing with OPCA litigants and their misguided theories. [64] In support of these positions, Crown relies upon the decisions in Au, Loosdrecht, Kobelt, and Sydel. [65] Crown also says that in tax evasion cases, it is an objective to promote a sense of responsibility in the offender and anacknowledgment of the harm done to the community: see Chobotar at page 9, lines 4 to 12. [66] Crown strongly opposes a conditional sentence order as a disposition of the charges.

Crown does not deny that there are caseswith similar charges where conditional sentence orders have been imposed upon the accused.

In those cases, Crown indicates thatconditional sentence orders arose out of joint submissions (see Porisky and see Jung) or where there had been mitigating factors such asdefence admissions that shorten the trial or payments made on outstanding tax amounts (see Turnnir and see Jung). [67] Crown relies upon the statutory test relating to proper use of a conditional sentence under s. 742.1 of the Code examined inLuoma, an appeal decision of Justice Halfyard of the British Columbia Supreme Court.

In the trial decision, the judge had utilized a testthat would not allow the imposition of a conditional sentence order if it "would endanger the community by encouraging such furtheroffences." Justice Halfyard states as follows in his reasons: [31] It is apparent from paragraphs 43 to 45 of the reasons for sentence that the trial judge did add an additional branch to thestatutory test in s. 742.1, which requires the court to be "satisfied that the service of the sentence in the community would not endangerthe safety of the community."

[32] The expanded test applied by the trial judge appears to have originated from the statement made by Kitchen P.C.J. in R. v.Thomas, 2002 BCPC 113, at paragraphs 38 and 39. [33] In my opinion, the test employed by the trial judge in this case runs contrary to the test established by the Supreme Court ofCanada in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, (in the course of the analysis at paragraphs 66 through 76). I think itis plain from paragraphs 66 to 68 and 127-6, that the "safety of the community" concerns only the threat posed by the specific offender ifshe or he serves the sentence in the community.

At paragraph 69, Chief Justice Lamer, speaking for the full court, summarized theapplicable test as follows: [69] In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community,two factors must be taken into account: 1) The risk of the offender re-offending; and 2) The gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that anoffender may re-offend.

If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain case, the minimal risk of re-offending will be offset by the possibility of a greatprejudice, thereby precluding a conditional sentence. [34] The trial judge found that the risk of the appellant re-offending was virtually non-existent.

There was no finding that, if theappellant did re-offend, the gravity of the potential consequences was so great that it created an unacceptable risk, and weighed heavilyagainst the imposition of a conditional sentence. Nor does there seem to be any basis upon which such a finding could be made.

In thosecircumstances, I think the trial judge should have concluded that "the service of the sentence in the community would not endanger thesafety of the community." The failure to do so, in my opinion, was an error of law. [68] Simply put, Crown says that there is a great likelihood that the Tyskeruds will re-offend by failing to file their income taxreturns and report their income, and there will be a failure to pay their taxes. There is no sense of remorse in them. [69] Crown says that the court should follow a two-step process:

(1) Determine if there is a real risk to re-offend; if yes, thenincarceration is required.

(2) If there is a minimal risk to re-offend but greater consequences flow from the re-offending, thenincarceration is required. Crown's Review of Case Authorities [70] Crown refers to a number of specific cases in order to support their sentencing position. The following is a

summary. I willprovide the case, the amount evaded, the length of imprisonment, the amount of fine, and the extenuating circumstances as the headingand then provide the information below each of these headings. Loosdrecht: Amount evaded: $98,211.36. Length of imprisonment: effective sentence of 20 months jail. Amount of fine: 100percent. Extenuating circumstances: tax protestor. Sydel: Amount evaded: $253,000 approximately. Length of imprisonment: 18 months jail. Amount of fine: first count, 75 percent;following four counts of 100 percent. Extenuating circumstances: tax protestor.

Amell: Amount evaded: Heidi Keyzer, $16,415.38 plus approximately $15,000 child tax credits and $1,300 GST; Robert Amell,$18,686.81 plus $1,700 GST; Douglas Amell, $172,397.50. Length of imprisonment: Heidi Keyzer, five months jail (upheld on appeal);Robert Amell, three months in jail; Douglas Amell, 16 months jail (upheld on appeal). Amount of fine: 100 percent for all. Extenuatingcircumstances: tax protestors. Porisky: $208,681 for Porisky; $27,434.56 for his spouse Gould. Length of imprisonment: Porisky, 18 months jail on evasion but4.5 years total; Gould, six months' conditional sentence order.

Extenuating circumstances: Porisky was the founder of Paradigm andcounselled others. The sentence was part of a joint submission. Gould's sentence was also part of a joint submission. Kobelt: Amount evaded: $512,867.67. Length of imprisonment: two years less a day (upheld on appeal). Amount of fine: 100percent. Extenuating circumstances: tax protestor. Chobotar: Amount evaded: $162,513. Length of imprisonment: six months jail. Amount of fine: 100 percent. Extenuating

circumstances: tax protestor. Luoma: Amount evaded: $60,960 income tax and evasion of $15,403.95 GST. Length of imprisonment: 90 days jail turned into a12-month CSO by the Court of Appeal. Amount of fine: $45,000 which was not 100 percent of the amount sought to be evaded. Extenuating circumstances: not a tax protestor, frail health, suicidal, remorseful, no risk to re-offend. Turnnir: Amount evaded: $148,823. Length of imprisonment: 18-month CSO. Amount of fine: 100 percent. Extenuatingcircumstances: tax protestor, agreed to certain facts which shortened the trial. Jung: Amount evaded: $27,434.56.

Length of imprisonment: probation for 14 months and 40 hours of community work service. Amount of fine: 100 percent.

Extenuating circumstances: renounced Paradigm views, paid a significant amount of tax debt prior tosentencing. [71] In their submissions, Crown say that other factors that this court should consider are the relatively small amounts of evasion, theextended length of time that the evasion took place over, the deliberate planning by Graydon Tyskerud involving the evasion scheme,and the imparting of that scheme by Graydon Tyskerud to Matthew Tyskerud. [72] Crown says that a review of a number of cases supports their submission that a fine of 100 percent of the amount of the taxessought to be evaded is standard.

The mandatory minimum amount is 50 percent. Crown says that proper notice to constitutionallychallenge the minimum fine has not been served by the accused in this matter. [73] Crown therefore seeks this court to impose the following sentence: (

a) Graydon Tyskerud, four months in jail and a fine of $14,186.22 representing a fine equal to 100 percent of the amount sought to beevaded as per Count 1;

b) Matthew Tyskerud, two months in jail and a fine of $3,320.82 being an amount equal to 100 percent of the amount sought to beevaded as per Count 6. Defence Submissions [74] The oral submissions made by Graydon Tyskerud were adopted by Matthew Tyskerud. In addition, Matthew Tyskerud'swritten submissions make liberal references to Graydon Tyskerud. Graydon Tyskerud and Matthew Tyskerud apparently have commonviews.

Accordingly, I will treat their submissions overall as something in the nature of a joint submission from both accused. [75] The accused have referred me to and rely upon the following case authorities as part of their submissions: 1. R. v. Davis, Victoria File 139938, which I believe to be a decision of our Provincial Court ("Davis"); 2. R. v. Black, [1997] N.S.J. No. 614 ("Black"); 3. R. v. Fera, [1976] O.J. No. 2467 ("Fera"); 4. R. v. J.I.L.M. Enterprises and Investments Ltd., [2003] O.J. No. 5516 ("J.I.L.M."); 5. R. v. Oriental Bowl Limited, [1983] S.J. No. 1117 {"Oriental Bowl"); 6. R. v.

Ostertag, [1977] B.C.J. No. 1094 ("Ostertag"); 7. R. v. Parsons (Nfld. S.C.T.D.), [1991] N.J. No. 269 ("Parsons"); 8. R. v. Pickering, [1997] M.J. No. 114 ("Pickering"); 9. R. v. Piscione, [1997] O.J. No. 4416 ("Piscione Trial"); 10. R. v. Piscione, [1998] O.J. No. 6455 ("Piscione Appeal"); 11. R. v. Roy, [2000] N.B.J. No. 2 ("Roy"); 12. R. v. Silvestri, 2001 D.T.C. 5595 ("Silvestri"); 13. R. v. Thistle, (ON SC), 1974 C.T.C. 798, 74 D.T.C. 6632 ("Thistle"); 14. R. v. Balla, 2010 BCSC 486 ("Balla"); 15. R. v. Kitty's Beauty Studio Ltd. et al, 2007 BCPC 111 ("Kitty's Beauty Studio"); 16. R. v.

Valley Heavy Equipment Inc. and Rolf Van Nuys, 2005 BCPC 32 , 2005 BCPC 0032 ("Valley Heavy Equipment"); 17. R. v. Breakell, 2009 ABCA 350 ("Breakell"); 18. R. v. Goett, 2010 ABQB 487 ("Goett"); 19. R. v. White and Sennet, (ON CA) ("White and Sennet");

20. R. v. Klundert, 2011 ONCJ 274 ("Klundert Trial"); 21. R. v. Klundert, 2011 ONCA 646 ("Klundert Appeal"); 22. R. v. White, (NSSC) ("White"); 23. Meads v. Meads, supra ("Meads"); 24. R. v. Witen, 2012 ONSC 4151 ("Whiten"); 25. R. v. Anderson, 2012 BCSC 1255 ("Anderson"); 26. R. v. Bunn, 2000 SCC 9 ("Bunn"); 27. R. v. Jastrebske, 2013 SKQB 150 ("Jastrebske"). [76] The accused have also referred me to and have relied upon specific portions from Sentencing, 8th ed., by Clayton C. Ruby,Gerald J. Chan, and Nader R. Hasan, LexisNexis Canada Inc. 2012. ("Sentencing, 8th ed."). [77] They have also relied upon what I understand to be an

article that appeared in the Canadian Lawyer magazine entitled, "The'Scourge' of Unrepresented Litigants" written by a Mark Cardwell and which reviews comments of Professor Julie Macfarlane of theUniversity of Windsor law school who is conducting research into self-represented litigants. [78] As observed by Crown in their reply, these case authorities can be divided into two groups: cases that support a fine less than100 percent of the amount of the fine and cases that support a sentence other than incarceration. [79] The essential components of the defendants' submissions deal with a number of topics.

The Characterization of the Accused as OPCA Litigants [80] First, there is the denial by the accused that they should be characterized as OPCA litigants for the beliefs that they hold andwere the subject matter of significant portions of Graydon Tyskerud's evidence. Significant time was spent in their submissionsattempting to distinguish themselves from some of the features of an OPCA litigant contained within the Meads analysis. Amongst otherthings, they disavow violence. They indicate that they have recognized the court process and have not abused it, nor can they beconsidered vexatious litigants.

They say that they are not part of or associated with any organization or movements identified by Meads. They deny that they are conspiracy theorists. They state in Matthew Tyskerud's written submissions that "if the Tyskeruds are in factOPCA litigants, then they are so far off the spectrum it would be the tip of their finger poking in." [81] The submissions are less fulsome in addressing the Trial Judgment’s examination and findings about their belief systems aboutincome and income tax with OPCA litigant features that ultimately were rejected and led to their convictions.

I am left with a strongsense that they continue to look for an explanation or answers and education as to why their views should not prevail on the relevantissues. [82] Matthew Tyskerud's written submission is replete with rhetorical questions which do not offer much in the way of assistance tothe court. [83] Instead, they submit that they are self-represented litigants who cannot afford good legal representation, and if I understandtheir argument, in

summary, they have faced overzealous prosecution on income tax evasion charges and harsh civil enforcementproceedings, all at the hands of CRA.

The civil enforcement proceedings have resulted in the seizure of their assets that are required toearn their livings but have only resulted in recovery from all seized personal and business assets of approximately $17,000 for GraydonTyskerud and approximately $3,150 for Matthew Tyskerud. [84] They assert that they have been denied due process by virtue of CRA's proceeding against them with tax evasion charges andthereby staying their ability to deal with their appeals and proceedings in Tax Court. [85] As part of their submissions, they provide their estimate and say the CRA has spent hundreds of thousands dollars in thesepursuits with little to show by way of results.

I understand them to be saying that they have been required to run their defence because ofthe original charge amounts being "grossly overstated." In the final result, the amount of Graydon Tyskerud's evasion is only 52 percentof what was originally claimed in the information, and Matthew Tyskerud's evasion was only 37 percent of the amount originallyclaimed in the information. [86] In addition, Crown stayed Count 5 against Graydon Tyskerud on the GST charges in the amount of $5,937.44 which they viewas a validation of the defence position. [87] They further submit that Crown is simply seeking to characterize them as OPCA litigants for the simple purpose of obtaining a"harsher or unjust sentence." [88] The accused deny Crown's suggestions that there is nothing that will convince the Tyskeruds to change their views. [89] Graydon Tyskerud submits that he "now gets it." By this, I understand him to mean that he understands that the source of hisincome is labour.

He says his understanding is based on the Trial Judgment and, in particular, the portions that deal with certainfundamentals of the income tax system that are set out in paragraphs 346 to 353. [90] Both Graydon Tyskerud and Matthew Tyskerud point to what they consider to be numerous errors and misinterpretationscontained in the pre-sentence reports which leave incorrect impressions.

[ 91 ] They state that they have not and do not intend to follow what some may consider to be the easy option of going bankrupt in order to avoid various claims being asserted against them by CRA. Fines [ 92 ] The second theme of their submissions are that fines based on 100 percent of the amount sought to be evaded are beyond their financial means and should be reduced to minimal fines or significantly less in percentage terms. Therefore, they say I should be taking into account their personal circumstance to set the fines in accordance with their ability to pay (see: Sentencing , 8th ed., at

Section 23.580 and

Section 23.585; see Klundert Appeal ; see Balla ; see Thistle ; see White ; see Fera ; and see White and Sennet ). [ 93 ] Submissions are also advanced as to the availability of certain credits to the accused from CRA's civil collection proceedings against them which they say should be applied to any fines imposed. This submission is ill-founded and confuses the distinction between the penalty aspect of fines in criminal evasion matters and the civil collection proceedings being undertaken by CRA to recover unpaid taxes.

Accused's Review of Case Authorities Incarceration and Conditional Sentences [ 94 ] The accused submit that the cases relied upon by Crown where incarceration was imposed involve accused who evaded substantial funds and who were large-income earners. The accused say that their income evasion is very small in comparison.

They point to such cases as Balla , Valley Heavy Equipment , and Breakell where incarceration was imposed but the amount of evasion was great and the circumstances were very egregious. [ 95 ] They further point to Anderson , a logging fraud case involving around $514,000, and to White , Ostertag , Fera , Piscione (Trial and Appeal), and J.I.L.M. , which resulted in either conditional sentence orders of various lengths or where suspended sentences with probation were imposed along with fines. [ 96 ] The accused say that Crown has been unable to refer the court to any cases where the income tax amount of the evasion was as little as the respective amounts in question in their case.

The accused refer me to Black , involving evasion of $18,500 by a lawyer. That matter was disposed of on appeal by the Nova Scotia Supreme Court with the imposition of only a fine of $18,500 or 100 percent of the amount sought to be evaded.

They also rely upon Oriental Bowl where the evasion was just over $14,000 and the sentence was by way of fine against both the corporation and the directors in varying amounts. [ 97 ] Other income tax evasion sentencing decisions involving only the imposition of fines (although, in some cases, jail time in default) include Ostertag ($23,210 evaded) and Parsons ($11,721 evaded by the husband and $1,735 by the wife), and Roy ($25,423 evaded) and Silvestri ($50,000 evaded), and Thistle ($47,587 evaded). [ 98 ] The accused therefore say that incarceration is not a warranted sentence in their case and would be unduly harsh and excessive. [ 99 ] Therefore, given the amounts of the evasion and given their status as first-time offenders and given the dependence of their families upon them to provide financially and given their other personal circumstances, the accused submit that the appropriate sentences as described in the introduction above that should be imposed would be: 1.

For Graydon Tyskerud, the completion of 150 hours of community work service and a conditional discharge upon completion of those hours;’ 2. For Matthew Tyskerud, completion of 40 hours of community work service and a conditional discharge upon completion of those hours. 3. In the alternative, Graydon Tyskerud proposes that any fine payable by Graydon Tyskerud should be less than the minimum prescribed fine and subject to an alleged credit available to Graydon Tyskerud. 4.

In the alternative for Matthew Tyskerud, he proposes that any fine payable by Matthew Tyskerud should be less than the minimum prescribed fine and should, after all the credits, total only $173.01. 5. In the further alternative, I understand that Graydon Tyskerud and Matthew Tyskerud say that any period of incarceration that is imposed upon either of them should be of very short duration and should be served in the community pursuant to a conditional sentence order.

The Purpose of Sentencing Criminal Code , s. 718 [ 100 ] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions having one or more of the objectives set out in s. 718 of the Criminal Code . The Objectives of Sentencing, s. 718 [ 101 ] Because of the nature of the offences and the circumstances of the offenders and the attitude of the accused when committing the offences, the following objectives of sentencing in this case include: (

a) denouncing unlawful conduct (this affirms community values concerning the magnitude of the crime and maintains the moral of law-biding citizens: see R. v. Arcand , 2010 ABCA 363 at 275);

(

b) deterring the offender and other persons from committing offences; (

c) assisting in rehabilitating the offender; (

d) providing reparations for harm done to victims or to the community; and (

e) promoting a sense of responsibility in the offender and acknowledging the harm done to the victims and to the community. The Fundamental Principle of Proportionality [ 102 ] As set out in s. 718.1 of the Code , it is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 103 ] The income tax evasion charges of which each accused stands convicted are serious and criminal in nature. They are an affront to important fundamental obligations of citizens in a free and democratic society.

They flow from an attempt to cheat the state and thereby inevitably increase the burden on their fellow citizens. As stated by Cory J. in Knox : 17 It is fitting and appropriate that the s. 239 offences be considered as criminal law. The Income Tax Act is a major source of funds for the federal government. Its provisions are applicable to most adult Canadians. The vast majority pay their income tax by way of payroll deduction with little or no opportunity for evasion or misstatement.

Those who do evade the payment of income tax not only cheat the State of what is owing to it, but inevitably increase the burden placed upon the honest taxpayers. It is ironic that those who evade payment of taxes think nothing of availing themselves of the innumerable services which the State provides by means of taxes collected from others. 18 The entire system of levying and collecting income tax is dependent upon the integrity of the taxpayer in reporting and assessing income. If the system is to work, the returns must be honestly completed.

All taxpayers have the right to know that it is a criminal violation to commit any of the offences described in s. 239. The Act imposes a public duty. A breach of that fundamentally important public duty should constitute a criminal offence. [ 104 ] Both Graydon Tyskerud and Matthew Tyskerud must shoulder the entire responsibility for their actions and their violations of this duty. Graydon Tyskerud shoulders an extra responsibility as the architect of the scheme that gave rise to the income evasion on the part of each of the two accused.

That architecture included utilization of discredited concepts to attempt to justify the violation of their duty to the state. [ 105 ] Parliament has expressed its concerns about these types of charges by allowing them to be proceeded by way of indictment and making provision for minimum fines. [ 106 ] What is also significant in this case is the relative modest amount of tax evaded in relation to other similar tax evasion cases. Other Sentencing Principles [ 107 ]

Section 718.2 sets out other sentencing principles. Mitigating and Aggravating Circumstances [ 108 ] The appropriate mitigating factors in this case with respect to Graydon Tyskerud include: (

a) He is an industrious individual with a stable employment history during his entire adult working life and has been supportive of his family. (

b) He has no prior criminal record or charges under the Income Tax Act . (

c) He is a low risk to the community. (

d) He has abided by the terms of his judicial interim release without incident. [ 109 ] The appropriate mitigating factors in this case with respect to Matthew Tyskerud include: (

a) He too is an industrious individual with a stable employment history during his entire adult working life and has been supportive of his family. (

b) He has no prior criminal record or convictions under the Income Tax Act . (

c) He is a low risk to the community. (

d) There is no history of breaching court orders. [ 110 ] The appropriate aggravating factors in this case with respect to Graydon Tyskerud are: (

a) He was the architect and implementer of the scheme to unlawfully evade taxes.

(

b) The duration of that scheme was of a relatively long duration. (

c) He attempted to personally profit from the offence. (

d) He has demonstrated a continuing lack of insight into his culpability. [111] The appropriate aggravating factors in this case with respect to Matthew Tyskerud are as follow: (

a) He was a willing participant in the scheme to unlawfully evade taxes. (

b) The duration of the scheme was of a relatively long duration. (

c) He attempted to personally profit from the offence. (

d) He has demonstrated a continuing lack of insight into his culpability. [112] When I note the respective lack of insight by each of the accused, I am mindful that lack of remorse is not an aggravating factorin itself but that an expression of remorse is a key mitigating factor, which is not present in either of the accused. Similarity to other sentences [113]

Section 718.2(

b) directs that a sentence be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances. However, because of the proportionality principle and individualized sentences, the parity principle does notpreclude disparity where warranted by circumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M.,2008 SCC 31 , [2008] 2 S.C.R. 163). Consider the least restrictive sanctions before depriving of liberty [114]

Section 718.2(

d) says that an offender should not be deprived of liberty if less restrictive sanctions may be imposed in thecircumstances. The Four Requirements for a Conditional Sentence [115]

Section 742.1 of the Criminal Code lists four requirements that must be met before a judge imposes a conditional sentence: 1. The offence must not be a serious personal injury offence as defined in s. 752, a terrorism offence or a criminal organizationoffence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more or punishable by a minimumterm of imprisonment. 2. The judge must impose a sentence of imprisonment of less than two years. 3. The judge must be satisfied that serving the sentence in the community would not endanger the safety of the community. 4.

The judge must be satisfied that a conditional sentence would be consistent with the fundamental purpose and principles ofsentencing as set out in s. 718 to s 718.2 [116] The first requirement speaks for itself; the other three I will deal with in more detail below. [117] Dealing with the second criteria, a conditional sentence duration will depend on the type of conditions imposed. Therefore, Ishould not determine the sentence duration separately from deciding whether it is to be served in jail or in the community.

Furthermore,a conditional sentence will depend on the type of conditions imposed: see Proulx, supra, paragraphs 50 and 52. [118] Because I am considering a term of imprisonment of less than two years, a conditional sentence is available under s. 742.1. Imust therefore in my analysis consider if it is appropriate for the offenders to serve their respective sentences in the community. [119] Dealing with the third requirement and before imposing a conditional sentence, I must be satisfied that serving the sentence inthe community would not endanger the safety of the community: see s. 742.1(a).

It is the risk posed by these particular offenders that Imust consider when answering this question and not the broader risk of whether a conditional sentence would endanger the safety of thecommunity by providing insufficient deterrence or undermining the general respect for the law.

Therefore, I must take into account therisk of each of the offenders re-offending and the gravity of the damage in the event of re-offence. [120] It is the risk of any criminal activity by an offender that I must consider and not just the risk of physical or psychological harm toindividuals. [121] With respect to the fourth requirement, I must determine whether a conditional sentence in these circumstances is consistent withthe fundamental purpose and principles of sentencing in ss. 718 to 718.2.

In Proulx, supra, at 127, the Supreme Court providedsentencing judges with the following guidance: - The judge should consider the possibility of a conditional sentence by examining whether a conditional sentence is consistent with thefundamental purpose and principles of sentencing set out in ss. 718 to 718.2. - A conditional sentence can provide significant denunciation and deterrence. - The more serious the offence, the longer and more onerous the conditional sentence should be.

- There may be circumstances where the need to denounce and deter is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct in order to deter similar conduct in the future. - Where a combination of both punitive and restorative objectives may be criminogenic, a conditional sentence will likely be more appropriate than incarceration. [ 122 ] I am mindful that a conditional sentence is discretionary. Meeting the statutory prerequisites of s. 742.1 does not entitle the offender to a conditional sentence.

However, when these have been met, given the principle of restraint in using imprisonment and the necessity to consider all available sanctions, as set out in ss. 718.2 (

d) and 718.2 (e) , a failure to consider a conditional sentence may constitute a reversible error: see Proulx at paragraphs 82 to 85, 90, 116, 121 to 122, and 123 to 126 . Analysis [ 123 ] The proposed conditional discharge being sought by the accused is not available under s. 730(1) of the Criminal Code for an offence which has a minimum punishment which has been prescribed. Section 239(1) (

f) of the ITA sets out a minimum fine of 50 percent of the taxes sought to be evaded. Therefore, a conditional discharge cannot be considered. [ 124 ] In dealing with the other available sentencing options, I have considered carefully the positions of the parties and reviewed all the cases submitted to me and taken into account the purpose, objectives, proportionality principle, and the other sentencing principles noted above.

In my review of the cases, I looked at the individual circumstances of the offenders in each of those cases that governed the disposition of the sentences by each of the courts involved. [ 125 ] I agree with Crown's concerns about the need in sentencing, in this case, for denunciation and general and specific deterrence, specifically in light of the circumstances of these charges and the discredited arguments utilized and relied upon by the accused. [ 126 ] The accused's skewed notion of the social contract in a free and democratic society that relies upon only paying for what you take or receive from the state and leaving it to others to financially support the state through the payment of income taxes while intentionally evading payment of income tax is, in my view, naive, unacceptable, and contemptible.

The furtherance of these views must be denounced and deterred. [ 127 ] I must, however, weigh those sentencing objectives against the fundamental principle of proportionality and the similarity to other sentences. [ 128 ] In my view, given the whole of the circumstances here, a fine alone, a suspended sentence, and an accompanying probation order would not be fit sentences. I am satisfied that based on all of the circumstances here, and on my review of the case law, that the fines being sought by Crown are appropriate, that is, 100 percent of the amount sought to be evaded.

What is up for further consideration is the time required to pay those fines. [ 129 ] Incarceration in the case of both Graydon and Matthew Tyskerud is an appropriate and fit sentence. The time suggested by Crown is within an appropriate range. The top end of that range, in my view, would certainly be less than 12 months for Graydon Tyskerud and less than eight months for Matthew Tyskerud. However, I am not satisfied that in this case incarceration will achieve all that Crown seeks.

Crown opposes a conditional sentence order on the basis of safety to the community and the likelihood of each of Graydon and Matthew Tyskerud re-offending. [ 130 ] What I must take into account about the risk of re-offending in this case is that one or both of the accused will fail to do something rather than actually doing something. [ 131 ] In property crimes and in offences against the person, the risk is that an offender will repeat those acts of commission. Here, it is more likely to be

an act of omission, that is, the failing to file income tax returns in accordance with the ITA. The likelihood of that occurring is difficult to assess.

However, at this point, I do not put that likelihood at a sufficiently high level that it would eliminate the availability of a conditional sentence order for each of the accused. [ 132 ] I am of the view that the terms of a conditional sentence order can be crafted to meet the safety of the community concerns that Crown has expressed. [ 133 ] I am also mindful that any re-offending by either of the accused in this matter may result in some damage to the community; however, I put the gravity of that damage, given the nature of the potential offences, at the lower range.

Again, I would not find that range to be significantly high enough as to eliminate the availability of a conditional sentence order for either of the accused in this case. [ 134 ] Therefore, it is my intention to impose a conditional sentence order on each of the accused with the statutory terms.

I also intend to exercise my broad discretion in respect of a conditional sentence order so that it will contain amongst its terms the completion of a significant amount of community work service and a requirement that each of the accused will, within a specified period, file all outstanding income tax returns under the ITA for which CRA has made formal demand upon each of the accused up to yesterday, July 10, 2013. [ 135 ] Crown has sought to speak to the conditions.

I am going to take a short break, and then I will come back and hear the submissions with respect to what Crown is seeking; then I will hear responses back from Messrs. Tyskerud. (PROCEEDINGS ADJOURNED/RECONVENED) (SUBMISSIONS RE TERMS OF CONDITIONAL SENTENCE ORDER)

[ 136 ] THE COURT: I will continue with my oral reasons for judgment. I have received submissions both from Crown and from Messrs. Graydon and Matthew Tyskerud with respect to conditions that would be appropriate for inclusion in the conditional sentence orders. In that regard, I am first of all going to, as a matter of formality, direct conditional stays on Counts 2, 3, and 4 as set out in the Crown's submissions to me, based on the principles in Kienapple . Accordingly, I will now deal with the conditional sentence orders that relate to each of Messrs.

Graydon Tyskerud and Matthew Tyskerud. [ 137 ] With respect to Graydon Tyskerud, I will impose upon him an 11-month conditional sentence order, and with respect to Mr. Matthew Tyskerud, I will impose upon him a six-month conditional sentence order. I am going to deal with the specific terms that will apply to both orders. First of all, I am going to deal with the statutory terms.

The statutory terms set out in s. 742.3 are as follows. [ 138 ] The first condition is keep the peace and be of good behaviour. [ 139 ] The second is to appear before the court when required to do so by the court. [ 140 ] The third is that each is to report to a sentence supervisor, and that is before 4 p.m. tomorrow, July 12, 2013, and they are to report in person and they are to report thereafter as directed by the supervisor. [ 141 ] They are to remain within the jurisdiction of the court unless written permission to go outside the jurisdiction of the court is obtained from the court or the supervisor. [ 142 ] Each of them must notify the supervisor of their residential address, and they must provide their residential telephone number, and they are not to change either their residential address or their residential telephone number without first informing their supervisor of any such change. [ 143 ] They 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 in employment or in occupation. [ 144 ] Dealing with the discretionary terms, with respect to Graydon Tyskerud and his 11-month conditional sentence order, I am going to provide that he complete 160 hours of community work service at the direction and to the satisfaction of the supervisor, and that must be completed within the first five months of the conditional sentence order. [ 145 ] I am going to impose further terms. [ 146 ] He must not consume any alcohol or any intoxicating substance whatsoever. [ 147 ] He must abstain absolutely from the use, consumption, or possession of any illicit or illegal substances as defined by the Controlled Drugs and Substances Act unless with a valid medical prescription. [ 148 ] For the first three months of his conditional sentence order, he must maintain house arrest.

That house arrest will be between the hours of 7 p.m. on Friday and 6 a.m. on Monday of each week, except he may arrange with his supervisor for time to attend to personal needs of a duration of not more than four hours with the permission of his supervisor, that four-hour period to be during the house arrest period, and he will carry the written permission on his person while he is outside of his residence and present it to a peace officer upon request.

He is entitled to two additional hours on the weekend to attend to any religious services with the written permission of his sentence supervisor to be carried on him while he is outside of his residence. [ 149 ] During the house arrest period of his conditional sentence order, he will also maintain a curfew between the hours of 7 p.m. and 7 a.m. daily for the balance of the week, and he must remain in his residence during the curfew hours unless with the written permission of the supervisor. [ 150 ] In order to confirm his presence within his place of residence during the curfew hours or the house arrest, he must present himself to the front door of the residence within five minutes of any peace officer, probation officer, or designate knocking and making their presence known. [ 151 ] I am going to impose those same conditions on Matthew Tyskerud as part of his six-month conditional sentence order.

So that will include the statutory terms that I have enumerated. I will also include the house arrest provisions and the curfew provisions as I have stipulated. [ 152 ] In each of the two conditional sentence orders, I am going to make a further provision that they are not to possess any weapons, as defined by the Criminal Code , or any imitations thereof. [ 153 ] I am going to make a condition with respect to Matthew Tyskerud that his house arrest will be for the first two months of his conditional sentence order, and there will be a curfew provision for two months, that is during the next two months.

The curfew provisions for each of Matthew and Graydon Tyskerud will be the same, and I believe I set out the curfew provision for Graydon Tyskerud, Madam Clerk, did I? [ 154 ] THE CLERK: Yes, you did, Your Honour. I'm going to have to listen to it. [ 155 ] THE COURT: All right. I believe there is a difference in how the house arrest works. For clarification there are two portions to it.

There is the weekend house arrest and then also there is a continuing weekly house curfew; but in addition, after the completion of the entire house arrest provision, there will be, for each of them, a two-month curfew period such that they must be in their residence between the hours of 7 p.m. and 7 a.m. daily, unless with the written permission of their supervisors. [ 156 ] THE CLERK: I'm sorry, Your Honour. So the house arrest is -- [ 157 ] THE COURT: The house arrest --

[ 158 ] THE CLERK: -- for three months? [ 159 ] THE COURT: Three months for Graydon Tyskerud, and then I believe the house arrest that I made for Matthew Tyskerud should be for two months. [ 160 ] THE CLERK: Yes. [ 161 ] THE COURT: All right. Then each of them will have a curfew period of two months after completion of the house arrest provision.

There will be a curfew provision for each of them for a period of two months on the basis of between the hours of 7 p.m. and 7 a.m. daily unless they have the written permission of their supervisor. [ 162 ] I believe I also said that with respect to both Matthew Tyskerud and Graydon Tyskerud, that both for their house arrest as well as their curfew periods, that they must confirm their presence within their place of residence during those periods and must present themselves at the front door of their residence within five minutes of a peace officer, probation officer, or designate knocking and making their presence known. [ 163 ] I am making a further order, and this will be specific to Matthew Tyskerud, that he must complete 80 hours of community work service at the direction and to the satisfaction of the supervisor, and he must do that within the first four months of his conditional sentence order. [ 164 ] With respect to Graydon Tyskerud, I am going to make a specific provision that he must provide to the attention of Diana Jamison at the Vancouver Island Tax Services Office on or before August 14, 2013, signed and accurate income tax returns on Form T1, including a statement of income and expenses and a statement of assets and liabilities for the personal taxation years ending December 31, 2009, December 31, 2010, December 31, 2011, and December 31, 2012. [ 165 ] There will be an identical provision with respect to Matthew Tyskerud; however, it will be for the personal taxation years of December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, December 31, 2011, and December 31, 2012. [ 166 ] There will be a separate imposition of a fine on Graydon Tyskerud being equal to 100 percent of the amount sought to be evaded in the amount of $14,186.22.

That fine will be payable on the following basis. [ 167 ] Ten percent of the original amount of the fine will be paid within one year of today's date. Twenty percent of the original fine amount will be payable within the next year from today's date.

Thirty percent of the original fine amount will be payable in the third year from today's date, and the balance of the fine will be payable within the fourth year of today's date. [ 168 ] With respect to Matthew Tyskerud, there will be a separate fine in the amount of $3,320.82 representing 100 percent of the amount sought to be evaded, and it will be payable in the same fashion as I have described for Graydon Tyskerud, that is, the percentages for each of the four years from today's date. [ 169 ] There will be a condition contained within each of the conditional sentence orders that each must carry a copy of the conditional sentence order on their person at all times while outside their place of residence and present a copy to a peace officer upon request. [ 170 ] There will be a general provision that will apply to any periods of house arrest or curfew that exempts each of Graydon Tyskerud and Matthew Tyskerud from being in their residence so long as they have the prior written permission of their supervisor. [ 171 ] I am going to pause for a moment.

I believe, Mr. Gibson, I have covered off all the conditions that you had suggested, have I not? (DISCUSSION/REVIEW OF CONDITIONS) [ 172 ] MR. GIBSON: I might suggest, Your Honour, that perhaps it would simplify things for the supervisor if it was simply just an exception if they obtain the advance written permission of the supervisor and that could be worked out. Obviously, if there are issues with the supervisor not permitting them time for a religious service or for personal appointments, then they could be brought back before the court.

Then it will just simply be one term that the supervisor may exempt them with advance written permission, because I think right now that leaves us with a number of terms for exemptions. [ 173 ] THE COURT: All right. Well, I will simplify it and make it a total of six hours during the weekends for personal and religious services, and it will be with the prior written permission of the supervisor. Is that what you are suggesting? [ 174 ] MR.

GIBSON: I would have suggested perhaps just simply providing the supervisor with one condition that empowers them to permit them an exemption as the supervisor can work out with them. [ 175 ] THE COURT: But it is specifically for personal and religious purposes; is that what you are suggesting? [ 176 ] MR. GIBSON: Well, the supervisor, I would trust, would only permit it for valid reasons such as attending a medical appointment or attending for a religious service.

I do know that Your Honour has provided them a curfew during the weekdays so that does provide them a bit of time there for attending to groceries and matters of that nature. In fact, given that they shut down at about 5 p.m., that would provide them some time there. I'm just trying to keep the order simple for the supervisor so there's not a number of exemptions. [ 177 ] THE COURT: Well, I am going to say with the permission of the supervisor or as may be approved by the supervisor including, without limitation, personal needs and religious attendances. [ 178 ] MR. GIBSON: All right.

[ 179 ] THE COURT: So I have broadened it, but I want there to be something so that the supervisor is aware that that was contemplated. [ 180 ] MR. GIBSON: All right. So that would be a single term -- [ 181 ] THE COURT: Correct. [ 182 ] MR. GIBSON: -- with the advance written permission of the supervisor there may be an exemption including but not limited to religious services and personal appointments. [ 183 ] THE COURT: Correct. [ 184 ] MR. GIBSON: All right. I hope that's sufficient for Madam Clerk. Now, with respect to Mr.

Matthew Tyskerud, a period of a six-month conditional sentence order with two months of mixed house arrest and curfew. That house arrest period would be from 7 p.m. Friday to 6 a.m. Monday, and then thereafter, during the week, a period of curfew from 7 p.m. to 7 a.m. daily. Perhaps just to -- so the numbers are consistent, perhaps it should be 7 p.m. to 7 a.m. each day. [ 185 ] THE COURT: That is correct. They should be consistent. [ 186 ] MR. GIBSON: All right. So the hours -- so for the period of house arrest, then, it will be from 7 p.m. Friday to 7 a.m. Monday. [ 187 ] THE COURT: Correct, for both Mr.

Graydon Tyskerud and for Matthew Tyskerud. [ 188 ] MR. GIBSON: Thank you. (FURTHER DISCUSSION/REVIEW OF CONDITIONS) [ 189 ] THE COURT: I thank Madam Clerk, and I thank Mr. Sheriff for their assistance in allowing us to complete what has been a lengthy sentencing process today. We will stand down. (REASONS CONCLUDED)