Chartered Professional Accountants of Ontario v. Gujral, 2020 ONCJ 307

CITATION: Chartered Professional Accountants of Ontario v. Gujral, 2020 ONCJ 307 DATE: July 3, 2020 IN THE MATTER OF the Chartered Professional Accountants of Ontario Act, 2017 , S.O. 2017, c. 8, Sched. 3 , the Certified Management Accountants Act, 2010, S.O. 2010, c. 6, Sched. B , and the Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sched. C . Between Chartered Professional Accountants of Ontario prosecutor and Joginder Singh GUJRAL (No. 2) defendant Ontario Court of Justice Brampton, Ontario Quon J.P.

Reasons for Sentence Offences convicted on ( 8 counts): Between March 1, 2017 and June 30, 2018 at the City of Brampton, Joginder Singh GUJRAL , (1) committed 3 counts of taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, contrary to

section 26 of the Certified Management Accountants Act, 2010 ; (2) committed 2 counts of taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, contrary to

section 27 of the Chartered Accountants Act, 2010 ; (3) committed of 3 counts of taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, contrary to

section 29 of the Chartered Professional Accountants of Ontario Act, 2017 ; (4) committed of 1 count of practicing as a Chartered Professional Accountant while not being a member of the Chartered Professional Accountants of Ontario, contrary to section 29(1) (

d) of the Chartered Professional Accountants of Ontario Act, 2017 .

Sentencing hearing held: January 17, 2020. Judgment released: July 3, 2020. Counsel: Madeline Brown, Polley Faith LLP, counsel for the Chartered Professional Accountants of Ontario. Joginder Singh Gujral, unrepresented. Cases Considered or Referred To: Abrametz v. The Law Society of Saskatchewan, [2018] S.J. No. 217 (Sask. C.A.). Allen v. Law Society of New Brunswick, 2017 NBCA 32 [2017] N.B.J. No. 190 (N.B.C.A.). Barik v. College of Physicians and Surgeons of Saskatchewan, [1992] S.J. No. 50 (Sask. C.A.). Brand v. College of Physicians and Surgeons of Saskatchewan, [1991] S.J. No. 417 (Sask. Q.B.).

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R. v. Ward (1980), (ON CA), 56 C.C.C. (2d) 15, [1980] O.J. No. 1439 (O.C.A.), per Martin, Blair and GoodmanJJ.A.

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No.357 (B.C.C.A.). Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323 [2011] O.J. No. 192 (Ont. S.C. (Div. Ct.), perJennings, Swinton and Sachs JJ. Shpak v. Institute of Chartered Accountants of British Columbia, [2003] B.C.J. No. 514 (B.C.C.A.). Wachtler v. College of Physicians and Surgeons of Alberta, 2009 ABCA 130 [2009] A.J. No. 347 (Alta. C.A.). Zesta Engineering Ltd. v. Cloutier, (ON CA), [2002] O.J. No. 4495 (Ont. C.A.), per Finlayson, Charron andSimmons JJ.A. Statutes, Regulations and Rules Cited: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(a).

Certified Management Accountants Act, 2010, S.O. 2010, c. 6, Sched. B, ss. 1, 14, 14(1), 15, 26, 26(1), 26(1)(d), 26(2), 26(2)(1),26(2)(1)(ii), 26(3), 26(6), 27, 27(1), 27(3), 28(1), and 38. Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sched. C, ss. 1, 11, 12, 27, 27(1), 27(1)(d), 27(2), 27(2)(1)(ii), 27(3), 27(6), 28, 28(1),28(3), 29(1), and 38. Chartered Professional Accountants of Ontario Act, 2017, S.O. 2017, c. 8, Sched. 3, ss. 1, 5, 15(1), 15(3), 17, 18, 18(2), 29, 29(1),29(1)(d), 29(2), 29(2)(b), 29(3), 29(6), 30, 30(1), 30(3), 31, 31(1), and 38. Criminal Code, R.S.C. 1985, c.

C-46, ss. 718, 718.1, 718.2, 718.2(c), 723(1), 723(2), and 724(1).

Courts of Justice Act , R.S.O. 1990, c. C.43, s. 131 and 131(1) . Law Society Act , R.S.M. 1987, c. L100, s. 52(4) . Law Society Act , R.S.O. 1990, c. L.8, ss. 26.2(6) , 49.28 , and 61.0.7(9) . Provincial Offences Act , R.S.O. 1990, c. P.33, ss. 18.3(2) , 29(3) , 53(3) , 57(3) , 60(1) , 60(2) , 68(4) , 72 , 72(2) , 72(3) (a), 81 , 90(2) , 129 , 138(3) , 139(3) , and 142(5) . Regulated Health Professions Act, 1991 , S.O. 1991, c. 18, s. 53.1 . Rules Of Civil Procedure ( Courts of Justice Act , R.R.O. 1990), O. Reg. 194, Rule 57, Tariff A. Reference Material Considered or Cited: Glenn, H.

Patrick, “Costs And Fees In Common Law Canada And Quebec”, online: < http://www- personal.umich.edu/~purzel/national_reports/Canada.pdf >, Ruby, Clayton C. Sentencing (2ed) (Toronto, Canada: Butterworths, 1980). Salte, B. The Law of Professional Regulation (Markham, Ontario: LexisNexis Canada Inc., 2015), at p. 262. Stewart, S. Stewart on Provincial Offences Procedure in Ontario (3rd. Ed.) (Toronto, Canada: Earlscourt Legal Press, Inc., 2011).

Exhibits entered: Exhibit "1" - Affidavit of Nykhol Mancini sworn on January 17, 2020, attesting that the affiant is a legal assistant with the law firm Polley Faith LLP and that the affiant had taken a screen shot of Joginder Singh Gujral’s LinkedIn profile webpage on January 16, 2020, which consists of 3 legal-sized pages that show Gujral is still using his foreign professional accounting designations of CMA(USA), FCA(India), FCMA(India) publicly in Ontario without including the required disclaimer that Gujral is not a member of CPA Ontario and not regulated by CPA Ontario (6 pages).

Exhibit "2" - copy of Statement Of Earnings And Deductions from indicating a payment dated for January 31, 2019, to Joginder Gujral for the pay period ending January 26, 2019. The statement also indicated that the total amount of earnings for the 2-week pay period was for $3461.54 based on an hourly rate of $47.4184 for 73 hours; that the pay period was 03 of 26 pay periods; that the net amount (after deductions) payable to Gujral was for $2350.27; and that Gujral had last been hired on April 30, 2018.

The employer is stated as Data Communications Management Corp. with an address of 9195 Torbram Rd., Brampton, Ontario L6S 6H2 (1 page). Exhibit "3" - copy of the total costs & disbursements of $58,190.60 incurred by Polley and Faith LLP in respect to the prosecution of Joginder Singh Gujral from June 1, 2018 to January 16, 2020 which contain 14 invoices presented by Polley and Faith LLP to the Chartered Professional Accountants of Ontario for their legal fees and disbursements (30 pages).

Exhibit "4" - copy of letter containing Joginder Singh Gujral’s written submissions in regards to an appropriate sentence, in which Gujral requests that his entire fine and fees be waived because Gujral has 3 dependents (his wife who is a housewife and does not earn any income, his daughter who is a university student who does not earn any income, and is son who is a grade 12 student who does not earn any income) and because Gujral does not earn enough to support them all or for paying all of his bills, and that each month Gujral’s borrowings/loan keep increasing.

And in lieu of waiving off the fines and fees, Gujral submits that he is willing to do community service instead because Gujral may declare bankruptcy if a fine is actually imposed on him.

However, in the alternative to waiving off his fines or fees, Gujral submits that he is willing to pay $2000 as a fine, which would be all inclusive of lawyers fees, court fines and all other charges, to be paid over 40 months, at $50 per month. [However, no financial documents, income tax returns, bank statements, mortgage documents were attached to Gujral’s letter to support his submissions in respect to his inability to pay a fine or his inability to reimburse CPA Ontario for reasonable legal costs incurred by CPA Ontario for the prosecution of Gujral]. 1.

INTRODUCTION [ 1 ] Besides having to decide what penalty or sanction, if any, should be imposed on the convicted offender as an appropriate sentence, the issue that has arisen in this regulatory offences sentencing is whether the convicted offender should also be ordered to pay $58,190.60 in costs, which is the amount of legal fees and disbursements incurred and sought by the prosecution.

And, if a costs order is warranted, then it will also have to be determined whether all or part of the prosecution’s costs should be paid by the offender, as well as what factors or criteria should be considered or used to calculate the actual amount of those costs that should be paid by the offender and to assess the reasonableness of that amount. [ 2 ] For the present sentencing, Joginder Singh Gujral had been convicted on November 29, 2019, of committing 8 public welfare or regulatory offences in respect to 3 different professional accounting statutes in Ontario (see Chartered Professional Accountants of Ontario v.

Gujral , [2019] O.J. No. 6103 (Ont. C.J.) ). [ 3 ] The 8 strict liability regulatory offences had been committed by Gujral between March 1, 2017 and June 30, 2018 in the City of Brampton.

They had been for practicing as a Chartered Professional Accountant while not being a member of the Chartered Professional Accountants of Ontario (“CPA Ontario”), as well as for taking or using designations or initials or a description on websites available to be viewed by the public in Ontario implying that he was a Certified Management Accountant, a Chartered Accountant, or a Chartered Professional Accountant in Ontario, or otherwise holding himself out as one of those accounting professionals when Gujral was not respectively a member of the Certified Management Accountants of Ontario, a member of the Institute of Chartered Accountants of Ontario, or a member of CPA Ontario.

These were offences under s. 26 of the Certified Management Accountants Act, 2010 , S.O. 2010, c. 6, Sched. B , s. 27 of the Chartered Accountants of Ontario Act, 2010 , S.O. 2010, c. 6, Sched.

C ., and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 , S.O. 2017, c. 8, Sched. 3 , respectively. [ 4 ] Although the offender, Joginder Singh Gujral, had received the professional accounting designations of “Chartered Accountant”, “Fellow Chartered Accountant”, “Cost Management Accountant”, “Fellow Cost Management Accountant” in India and his “Certified Management Accountant” designation from the United States, and had also worked as a professional accountant for approximately 20 years for major international corporations, Gujral was not legally permitted to publicly use his foreign professional accounting designations, initials, or descriptions in Ontario unless he was a member of the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, or of CPA Ontario.

Gujral was indeed not a member of any of the professional accounting bodies in Ontario at the time when he had committed the 8 regulatory offences, nor is he a member of CPA Ontario at the time of the sentencing hearing. But, for a time, Gujral had been enrolled as a student of CPA Ontario from June 23, 2015 to February 12, 2018, and taking courses and preparing for the Common Final Exam that are prerequisites for membership in CPA Ontario.

However, since Gujral had failed to pass the Common Final Exam on three attempts, Gujral was deregistered as a student of CPA Ontario on February 12, 2018. [ 5 ] On the other hand, Gujral would have been legally permitted to use his foreign professional accounting designations, initials, or descriptions in respect to a member of the public in Ontario, if its use, or Gujral’s purpose, fell within the 3 legal exceptions set out in the 3 professional accounting statutes of Ontario that had applied to Gujral, and where Gujral had also expressly included the qualifying statement or proviso of, “ I am not a member of Chartered Professional Accountants of Ontario (CPA Ontario) and I am not governed by CPA Ontario.

My services have not been approved or endorsed by CPA Ontario ”, alongside his foreign professional accounting designations, initials, or descriptions.

Moreover, for the 8 regulatory offences committed by Gujral, Gujral’s public use of his foreign professional accounting designations, initials, or descriptions on his websites, which were readily available to be viewed by the public in Ontario, did not fall within the 3 statutory exceptions set out in the 3 governing statutes, nor did Gujral include the legally required qualifying statement or proviso about his non-membership in CPA Ontario in any of his webpages that were available for public viewing in Ontario. [ 6 ] Joginder Singh Gujral’s sentencing hearing was held on January 17, 2020.

In their sentencing submissions, the prosecution sought as an appropriate sentence for Gujral’s 8 convictions the following: (1) a total monetary fine of $48,000, which comprises of a fine of $6000 for each of the 8 convictions (exclusive of the court costs and the victim fine surcharge); (2) a period of probation for 2 years with a condition that Gujral not commit the same or similar offences during the probationary period; and (3) an order that Gujral

pay the total legal costs and disbursements incurred by CPA Ontario in the prosecution of Gujral for those 8 regulatory offences, which had amounted to $58,190.60. [ 7 ] Conversely, Joginder Singh Gujral, in his oral and written sentencing submissions, made a request that the court waive any fines or fees and instead order Gujral to do community service.

Alternatively, if there were to be a fine imposed by the court then Gujral had requested that his fine should be in the amount of $2,000 inclusive of all fees and costs, which would be paid off over 40 months, at $50 a month, because Gujral contends that he does not having enough money to support himself and his wife and two children, nor to pay his monthly bills and mortgage. Moreover, Gujral also submitted that if a fine were to be imposed on him then Gujral might have to declare bankruptcy.

However, at the sentencing hearing on January 17, 2020, Gujral did not submit any financial documents, such as bank statements, mortgage documents, loan payment documents, current pay stubs (the prosecution had been the party who had submitted a pay stub for Gujral, which Gujral had provided to the prosecution), income tax returns, social assistance benefit documents, or other documents in respect to his and his family’s living expenses, which would support his contention that he is impecunious or that he lacks the ability to pay a fine within a reasonable period.

On the other hand, when Gujral was informed that when one contends an inability to pay a fine one would likely need documentary proof to support that claim, considering there was evidence that Gujral had 2 full-time jobs, and then when he was asked why he did not bring any financial documents to prove his contention that he would be unable to pay a fine after being reminded that his sentencing hearing was being conducted at that time on January 17, 2020, Gujral remarked that he would bring such documentary proof on the next date, which would have been on May 5, 2020, the date scheduled for Gujral’s sentence to be actually rendered in court.

In addition, Gujral did not contend that he had any unusual expenses or debts which would be different from anyone else in Canada, who also carry a mortgage and have children in school and a spouse who does not work outside the home. [ 8 ] As for the prosecution’s request for an order requiring Joginder Singh Gujral to pay CPA Ontario’s “legal costs” that were incurred in the prosecution of Gujral, the legal requirement for a member of a regulated profession in Canada, after having been found to have committed professional misconduct by the disciplinary committee of their governing body, to pay to their governing body the costs incurred by the governing body in the investigation of the member and in holding a disciplinary hearing for a member’s professional misconduct under administrative law proceedings is a regular consequence, but they are rarely available as part of a sentence that can be imposed on someone convicted of committing a quasi-criminal or regulatory offence.

However, in the present case, the 3 professional accounting statutes in Ontario that govern and regulate professional accountants in Ontario that were in force and applicable to Gujral at the time the 8 regulatory offences had been committed by Gujral, do expressly provide for, as well as legally empowering the sentencing court to make such an order as part of an appropriate sentence. Specifically, Gujral, as a non-member of CPA Ontario or its predecessor bodies, may be ordered to pay to CPA Ontario, the “reasonable costs” that had been incurred by them for the investigation and prosecution of Gujral.

Furthermore, these 3 accounting statutes applicable to Gujral legally permit either a disciplinary committee to order reasonable costs to be paid by members to the governing accounting body, or as in the present case, a court to order reasonable costs to be paid by non-members to the specific governing accounting body enforcing one of the professional accounting statutes in Ontario. [ 9 ] Ergo, in order to arrive at a fit and just sentence for Joginder Singh Gujral for the 8 regulatory offences that he was convicted of committing, it will have to be first determined what the appropriate fine should be, if any, in order to address the primary sentencing factors of general and specific deterrence; secondly, it will have to be determined whether a period of probation with conditions is required; and thirdly, it will have to be determined whether any “reasonable costs” that had been incurred by CPA Ontario for the prosecution of Gujral’s 8 regulatory offences should be ordered to be paid by Gujral to CPA Ontario, as legally permitted under the 3 governing accounting statutes. 2.

BACKGROUND (

A) THE REGULATORY OFFENCES COMMITTED BY JOGINDER SINGH GUJRAL [ 10 ] T he offender, Joginder Singh Gujral, had been convicted on November 29, 2019, of committing the 8 regulatory offences set out in Information #5539. The 8 convictions had been for the following 8 regulatory offences that were committed in Brampton between March 1, 2017 and June 30, 2018: (1) taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, to wit: on the website http://gujraltutor.com , contrary to

section 26 of the Certified Management Accountants Act, 2010 ; (2) taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of

Ontario, to wit: in a Kijiji advertisement, to

section 26 of the Certified Management Accountants Act, 2010 ; (3) taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, to wit: on the website http://gujraltutor.com , contrary to

section 27 of the Chartered Accountants Act, 2010 ; (4) taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, to wit: in a Kijiji advertisement, contrary to

section 27 of the Chartered Accountants Act, 2010 ; (5) taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on a LinkedIn profile, contrary to

section 29 of the Chartered Professional Accountants of Ontario Act, 2017 ; (6) taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on the website http://home.icmai- canada.org., contrary to

section 29 of the Chartered Professional Accountants of Ontario Act, 2017 ; (7) taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on the website http://gujralaccounting.ca, contrary to

section 29 of the Chartered Professional Accountants of Ontario Act, 2017 ; and (8) practising as a Chartered Professional Accountant while not a member of the Chartered Professional Accountants of Ontario, contrary to section 29(1) (

d) of the Chartered Professional Accountants of Ontario Act, 2017 . (

B) THE OFFENDER, JOGINDER SINGH GUJRAL [ 11 ] The offender, Joginder Singh Gujral, was 48 years old at the time of the trial. He was born in India and attended university in India where he graduated with a Bachelor of Commerce degree and a Master of Business Administration degree. Furthermore, the defendant has approximately 20 years of experience working as a Chartered Accountant (C.A.) or Cost and Management Accountant (C.M.A.) with various international companies in India and elsewhere, before he was accepted as a student of CPA Ontario on June 23, 2015.

Gujral was enrolled and took the required CPA Ontario courses, and also studied to write the Common Final Exam for admission as a member of CPA Ontario. In addition, Gujral wrote the Common Final Exam 3 times but failed to pass the Common Final Exam on these 3 occasions, and as such, was deregistered by CPA Ontario as a student of CPA Ontario on February 12, 2018. [ 12 ] Gujral had also emigrated to Canada with his wife and 2 children.

Presently, Gujral has the status of a permanent resident of Canada and is presently a resident in Brampton, Ontario. [ 13 ] Moreover, Gujral testified at his trial that he was very busy as he had 2 full-time jobs.

Exhibit #2 (for Sentencing) indicates that for one of his jobs he has been and is still employed with Data Communications Management Corp. of 9195 Torbram Rd., Brampton, Ontario, since April 30, 2018, where he earns approximately $90,000 per year before deductions ($47.4184 per hour for 73 hours of work every 2 weeks for 26 pay periods in a year, which would make it approximately $90,000 a year). [ 14 ] Furthermore, on his website “ http://gujralaccounting.ca ” (see Exhibit #14 in the trial), Gujral advertised that his accounting firm, “Gujral Accounting”, had offices in Ontario in which he and his accounting firm provided professional services that included accounting and taxation services to a broad range of small or medium-sized entrepreneurial clients, and that Gujral Accounting serves the Greater Toronto Area including Brampton, Mississauga, Toronto, Thornhill, Richmond Hills, Scarborough, North York and Etobicoke.

[ 15 ] Moreover, Gujral has also purchased a house in Brampton, Ontario, which is located at 5 Keystone Drive in Brampton. Gujral also indicated that he has a mortgage on that property. [ 16 ] Furthermore, by written and oral submissions, Gujral stated that he also has 3 dependents, his wife who is a housewife that does not earn any income, a daughter who is a university student that does not earn any income, and a son who is a grade 12 high school student that does not earn any income. (

C) JOGINDER SINGH GUJRAL HAD OBTAINED SEVERAL PROFESSIONAL ACCOUNTING DESIGNATIONS FROM INDIA AND THE UNITED STATES [ 17 ] Gujral had received the professional accounting designation of “Chartered Accountant (C.A.)” from the Institute of Chartered Accountants of India in 1995. He was also granted in 2012 by the Institute of Chartered Accountants of India the designation of “Fellow Chartered Accountant (F.C.A.)”. In addition, Gujral had received the accounting designation “Cost and Management Accountant (C.M.A.)” from the Institute of Cost Accountants of India in 2002.

Gujral also received from the Institute of Cost and Management Accountants of India the accounting designation of “Fellow Cost and Management Accountant (F.C.M.A.)” in 2012. Furthermore, Gujral received the accounting designation of “Certified Management Accountant (C.M.A.)” from the Institute of Management Accountants of the United States (date it was obtained is unknown). (

D) JOGINDER SINGH GUJRAL WAS NOT A MEMBER OF CPA ONTARIO OR A MEMBER OF ANY PROFESSIONAL ACCOUNTING BODY IN ONTARIO PRIOR TO BE CONVICTED OF COMMITTING THE 8 OFFENCES OR AT THE TIME OF SENTENCING. [ 18 ] Joginder Singh Gujral had been registered as a student of CPA Ontario on June 23, 2015.

He had commenced the application process to become a student of CPA Ontario while he was working and residing in Cape Town, South Africa. [ 19 ] Gujral was not exempted by CPA Ontario from the education and examination (Common Final Exam) requirements for the qualification program of CPA Ontario for foreign qualified professional accountants, so Gujral had been required to successfully complete those requirements to qualify for admission as a member of CPA Ontario. [ 20 ] However, Gujral had been deregistered by CPA Ontario as a student of CPA Ontario on February 12, 2018, after his third attempt and failure in passing the Common Final Exam (CFE). [ 21 ] But more importantly, students enrolled with CPA Ontario are not “members” of CPA Ontario for the purpose of being legally permitted to use their foreign professional accounting designations and their corresponding initials or descriptions in the public realm in Ontario, which members of CPA Ontario are legally permitted to do.

Only when a student of CPA Ontario successfully completes the required courses, fulfills the experience requirement and passes the qualifying exam, is the student then entitled for admission as a member of CPA Ontario. [ 22 ] In addition, Gujral had not been a member of the Certified Management Accountants of Ontario, a member of the Institute of Chartered Accountants of Ontario, or a member of CPA Ontario at the time the 8 regulatory offences had been committed by Gujral, nor is Gujral presently a member of CPA Ontario. (

E) JOGINDER SINGH GUJRAL IS STILL UNLAWFULLY USING HIS FOREIGN PROFESSIONAL ACCOUNTING DESIGNATIONS, INITIALS, OR DESCRIPTIONS ON HIS “LINKEDIN” WEBPAGE, WHICH ARE ACCESSIBLE AND VIEWABLE BY THE PUBLIC IN ONTARIO [ 23 ] Furthermore, Nykhol Mancini, legal assistant with the law firm Polley Faith LLP, in her affidavit (Exhibit #1 (for Sentencing)) stated that Joginder Singh Gujral has been still unlawfully using his foreign professional accounting designations, initials, or descriptions on his LinkedIn webpage on January 16, 2020, which is the day before the sentencing hearing held on January 17, 2020.

[ 24 ] In particular, Exhibit #1 (for Sentencing) shows that Gujral had used the foreign professional accounting designations, initials or descriptions of “CMA(USA)”, “FCA(India)”, and “FCMA(India)” on his LinkedIn webpage that was available to be viewed by the public in Ontario on January 16, 2020. Furthermore, the public use of those foreign professional accounting designations, initials or descriptions in Ontario by Gujral were not exempted by the 3 statutory exceptions set out in the 3 Ontario accounting statutes applicable to Gujral.

Moreover, Gujral did not expressly state or include the required qualifying statement by Gujral on his LinkedIn webpage that “ I am not a member of Chartered Professional Accountants of Ontario (CPA Ontario) and I am not governed by CPA Ontario. My services have not been approved or endorsed by CPA Ontario ”, alongside those foreign professional accounting designations, initials, or descriptions. (

F) JOGINDER SINGH GUJRAL’S CONDUCT IN THE PROCEEDINGS HAS CAUSED CPA ONTARIO TO INCUR ADDITIONAL LEGAL COSTS [ 25 ] Even though, Joginder Singh Gujral was self-represented for most of the proceedings, Gujral did not conduct himself properly throughout the proceedings.

Gujral initially had a paralegal represent him at his first appearance in the proceedings, but then Gujral self- represented himself after the first appearance. [ 26 ] Gujral’s improper conduct in the proceedings which led to additional costs being incurred by CPA Ontario first occurred at the Judicial Pre-trial Conference held on March 26, 2019, where Gujral did not act with sincerity or candour or cooperate with the Judicial Pre-trial court in setting the earliest trial date.

Instead of Gujral agreeing to set a trial date, Gujral had refused to set a trial date and claimed that he would be unavailable for the earliest available dates for trial because he had to be out of the country on those dates. The Judicial Pre-trial court then ordered Gujral to bring or provide proof on April 8, 2019, that Gujral would be out of the country on those available trial dates. On April 8, 2019, Gujral produced airline tickets to the Judicial Pre-trial court as proof that Gujral would be out of the country on those earliest available trial dates.

However, the airline tickets had only been purchased by Gujral on April 3, 2019, which was a date after the first Judicial Pre-trial Conference date of March 26, 2019.

By not setting a trial date on March 26, 2019, Gujral had caused CPA Ontario to incur costs of an additional court appearance on April 8, 2019. [ 27 ] Another incident of improper conduct occurred when Gujral brought an unmeritorious and groundless application on August 19, 2019, to adjourn the scheduled trial date of September 11, 2019, for which CPA Ontario had to incur additional legal costs to appear on Gujral’s adjournment application to challenge the adjournment application that was eventually dismissed.

His Worship Bonas, who had dismissed Gujral’s application to adjourn the scheduled trial date, also found Gujral’s grounds and motion "frivolous" and "lacking in truthfulness". [ 28 ] Moreover, CPA Ontario had to also incur additional legal costs to research and address the many frivolous, groundless, and unmeritorious claims of Charter infringements brought against CPA Ontario at trial. Only Gujral’s claim that his freedom of expression guaranteed under s. 2(

b) of the Charter had been infringed had any merit. [ 29 ] Accordingly, CPA Ontario had to incur additional legal costs for additional court appearances to set a trial date and to challenge the groundless adjournment application, as well as incurring additional legal costs to conduct many hours of legal research in order to address the many frivolous and unmeritorious Charter infringement claims brought by Gujral. 3.

POTENTIAL PENALITIES THAT COULD BE IMPOSED ON JOGINDER SINGH GUJRAL FOR THE 8 REGULATORY OFFENCES CONVICTIONS UNDER THE 3 APPLICABLE PROFESSIONAL ACCOUNTING STATUTES [ 30 ] For the 8 strict liability regulatory offences that Joginder Singh Gujral has been convicted of committing, 2 of the 8 offences were under s. 26 of the Certified Management Accountants Act, 2010 , S.O. 2010, c. 6, Sched.

B ; another 2 of the 8 offences were under s. 27 of the Chartered Accountants of Ontario Act, 2010 , S.O. 2010; and 4 of the 8 offences were under s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 , S.O. 2017, c. 8, Sched. 3 . (

A) THE CERTIFIED MANAGEMENT ACCOUNTANTS ACT, 2010 [ 31 ] For counts #1 and #2, Joginder Singh Gujral was convicted of committing offences that are set out under s. 26 of the Certified

Management Accountants Act, 2010 , S.O. 2010, c. 6, Sched. B .

The penalties or measures that could be imposed on Gujral for committing an offence under s. 26 include: [1] under s. 27(1), a fine of not more than $10,000 for each offence; [2] under s. 27(3), a period of probation that may include a condition that Gujral pay compensation or make restitution to any person who suffered a loss as a result of the offence and a condition not to contravene s. 26; and [3] under s. 28(1), an order for Gujral to pay to the “Certified Management Accountants of Ontario” some or all of the costs reasonably incurred by them in prosecuting Gujral for the offences in question and in undertaking any investigation related to the subject matter of the prosecution [ emphasis is mine below ]: Offences and penalty 27(1) Every person who contravenes

section 26 is guilty of an offence and on conviction is liable to a fine of not more than $10,000 . Application to corporation

(2) If a corporation is guilty of an offence under subsection (1), every director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is deemed to be a party to and guilty of the offence and on conviction is liable to a fine of not more than $10,000. Probation orders

(3) On conviction of a person for an offence under this section, the court may prescribe as a condition of a probation order any of the following : 1. That the person pay compensation or make restitution to any person who suffered a loss as a result of the offence . 2. That the person shall not contravene

section 26 . Costs 28

(1) In addition to the fine, on conviction for an offence under

section 27, a court may order that the convicted person pay to the Corporation some or all of the costs reasonably incurred by it in prosecuting the offence and in undertaking any investigation related to the subject matter of the prosecution . Same

(2) Costs payable under subsection (1) are deemed to be a fine for the purpose of enforcing payment. (

B) THE CHARTERED ACCOUNTANTS OF ONTARIO ACT, 2010 [ 32 ] Furthermore, for counts #3 and #4, Joginder Singh Gujral was convicted of committing offences that are set out under s. 27 of the Chartered Accountants of Ontario Act, 2010 , S.O. 2010, c. 6, Sched. C .

The penalties or measures that could be imposed on Gujral for committing an offence under s. 27 include: [1] under s. 28(1), a fine of not more than $10,000 for each offence; [2] under s. 28(3), a period of probation that may include a condition that Gujral pay compensation or make restitution to any person who suffered a loss as a result of the offence and a condition not to contravene s. 27; and [3] under s. 29(1), an order for Gujral to pay to the “Institute of Chartered Accountants of Ontario” (CPA Ontario) some or all of the costs reasonably incurred by them in prosecuting Gujral for the offences in question and in undertaking any investigation related to the subject matter of the prosecution [ emphasis is mine below ]:

Offence and penalty 28

(1) Every person who contravenes

section 27 is guilty of an offence and on conviction is liable to a fine of not more than $10,000 . Application to corporation

(2) If a corporation is guilty of an offence under subsection (1), every director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is deemed to be a party to and guilty of the offence and on conviction is liable to a fine of not more than $10,000. Probation orders

(3) On conviction of a person for an offence under this section, the court may prescribe as a condition of a probation order any of the following : 1. That the person pay compensation or make restitution to any person who suffered a loss as a result of the offence . 2. That the person shall not contravene

section 27 . Costs 29

(1) In addition to the fine or any other penalty imposed on conviction for an offence under

section 28 , the court may order that the convicted person pay to the Institute some or all of the costs reasonably incurred by it in prosecuting the offence and in undertaking any investigation related to the subject matter of the prosecution . Same

(2) Costs payable under subsection (1) are deemed to be a fine for the purpose of enforcing payment. (

C) THE CHARTERED PROFESSIONAL ACCOUNTANTS OF ONTARIO ACT, 2017 [ 33 ] In addition, for counts #5, #6, #7, and #8, Gujral was convicted of committing offences that are set out under s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 , S.O. 2017, c. 8, Sched. 3 .

The penalties or measures that could be imposed on Gujral for committing an offence under s. 29 include: [1] under s. 30(1), a fine of not more than $10,000 for each offence if it is a first offence or a fine of not more than $25,000 for each offence if it is a subsequent offence; [2] under s. 30(3), a period of probation that may include a condition that Gujral pay compensation or make restitution to any person who suffered a loss as a result of the offence and a condition not to contravene s. 29; and [3] under s. 31(1), an order for Gujral to pay to “CPA Ontario” some or all of the costs reasonably incurred by them in prosecuting Gujral for the offences in question and in undertaking any investigation related to the subject matter of the prosecution [ emphasis is mine below ]: Offence and penalty

30(1) Every person who contravenes

section 29 is guilty of an offence and on conviction is liable to a fine of not more than $10,000 fora first offence, and not more than $25,000 for each subsequent offence. Application to corporation

(2) If a corporation is guilty of an offence under subsection (1), every director or officer of the corporation who authorized,permitted or acquiesced in the commission of the offence is deemed to be a party to and guilty of the offence and on conviction is liableto a fine of not more than $10,000 for a first offence, and not more than $25,000 for each subsequent offence. Probation orders

(3) On conviction of a person for an offence under this section, the court may prescribe as a condition of a probation order any ofthe following: 1. That the person pay compensation or make restitution to any person who suffered a loss as a result of the offence. 2. That the person shall not contravene

section 29. Costs 31(1) In addition to the fine or any other penalty imposed on conviction for an offence under

section 30, the court may order that theconvicted person pay to CPA Ontario some or all of the costs reasonably incurred by it in prosecuting the offence and in undertakingany investigation related to the subject matter of the prosecution. Same

(2) Costs payable under subsection (1) are deemed to be a fine for the purpose of enforcing payment (

D) A PERIOD OF IMPRISONMENT IS NOT AVAILABLE AS A SANCTION UNDER THE 3 GOVERNINGPROFESSIONAL ACCOUNTING STATUTES [34] But, more importantly, Joginder Singh Gujral is not subject to being sentenced to a period of imprisonment for these 8convictions, since such a penalty or sanction is not expressly provided for under the Certified Management Accountants Act, 2010, underthe Chartered Accountants of Ontario Act, 2010, or under the Chartered Professional Accountants of Ontario Act, 2017. 4. THE SENTENCING PRINCIPLES WHICH GOVERN REGULATORY OR PUBLIC WELFARE OFFENCES IN ONTARIO (

A) THE OBJECTIVES AND THE PRINCIPLES OF SENTENCING FOR A REGULATORY OFFENCE [35] In determining the appropriate sentence to impose on Joginder Singh Gujral for the 8 regulatory offences convictions,consideration should begin with R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J. No. 28, in whichLamer C.J.C. for the Supreme Court of Canada, held at para. 82 that the objectives of retribution, deterrence, denunciation, rehabilitation

and the protection of society are legitimate objectives of sentencing and that the overarching duty of a sentencing judge is to draw uponall the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offencecommitted and the moral blameworthiness of the offender [emphasis is mine below]: … it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition ofcriminal sanctions.

Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another toprovide a coherent justification for criminal punishment. As Gonthier J. emphasized in Goltz, supra, at p. 502, the goals of the penalsanction are both "broad and varied". Accordingly, the meaning of retribution must be considered in conjunction with the otherlegitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection ofsociety. Indeed, it is difficult to perfectly separate these interrelated principles.

And as La Forest J. emphasized in Lyons, the relativeweight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of theoffender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing todetermine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of theoffender. [36] Moreover, Lamer C.J.C confirmed, at para. 78, in R. v. M.(C.A.), that a majority of the Supreme Court in R. v.

Jones (1994),(SCC), 89 C.C.C. (3d) 353 at p. 397, had recognized that the fundamental purpose of sentencing for criminal matterswas to preserve the authority of and promote respect for the law through the imposition of just sanctions, which would likewise be anapplicable principle for the sentencing of regulatory offences [emphasis is mine below]: … With these considerations in mind, the Commission explicitly defined the fundamental purpose of sentencing with reference to thenormative goal of imposing "just sanctions".

As the Commission cast the guiding purpose of criminal sentencing, at p. 153: In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamentalpurpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions. [Emphasisadded.] A majority of this Court has since expressed approval of this passage as an accurate statement of the essential goals of sentencing. SeeR. v. Jones, (SCC), [1994] 2 S.C.R. 229, at p. 291 (although I dissented on the merits of the case).

In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose ofsentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions.

(1) What Are The Objectives Of Sentencing For Regulatory Or Public Welfare Offences? (

a) The universal sentencing principles of the criminal law apply equally to sentencing of regulatory or public welfare offences. [37] Although the Provincial Offences Act, R.S.O. 1990, c. P.33, the governing procedural statute for the prosecution of regulatoryoffences in Ontario, has not expressly set out the principles and objectives of sentencing for regulatory matters like that which has beencodified in the Criminal Code under ss. 718, 718.1, and 718.2, Kukurin J. in R. v. Kirk (c.o.b. B.A. Holdings), 2005 ONCJ 352[2005] O.J.

No. 3316 (O.C.J.), at para. 16, has reasoned that, despite this lack of specific statutory guidance in the Provincial OffencesAct, a sentence is not chosen arbitrarily from the pool of sentence options available in any particular case.

Accordingly, Kukurin J.surmised that an offence created by provincial statute or a federal statute or one that qualifies as a crime under the Criminal Code issubject to universal principles of sentencing that apply to all offences, so that a sentencing court would be bound to apply those universalsentencing principles which are particularly relevant to the nature and circumstances of the offence and to the particular offender[emphasis is mine below]: The Provincial Offences Act is subdivided into ten parts.

Part IV deals with trials and sentencing. There is no provision in the POA thatis analogous to

section 718,

section 718.1 or

section 718.2 of the Criminal Code of Canada. … In other words, there is no specificstatutory guideline within the POA that directs the court to general purposes and principles of sentencing. Notwithstanding this lack ofspecific statutory guidance, it is evident that a sentence cannot just be chosen arbitrarily from the pool of sentence options available inany particular case. Whether an offence is created by a provincial statute, or by federal statute or qualifies as a crime under theCriminal Code, it is subject to universal principles of sentencing that apply to all offences.

As a sentencing court, the court imposing thesentence on the defendant Kirk was bound to apply those sentencing principles that were relevant. For purposes of this appeal, I adoptsection 718,

section 718.1 and

section 718.2 of the Criminal Code as provisions that have applicability to the offences in this case for

which the defendant was convicted, not because the POA specifically imports these by its own terms, but rather because the provisions of these sections have general applicability whether an offence is a crime or is an offence created by a provincial statute . [ 38 ] As such, the sentencing principles set out in s. 718 , s. 718.1 and s. 718.2 of the Criminal Code would also apply to the sentencing of an offender who has committed a regulatory offence, since those particular provisions which are based on universal principles of sentencing would have general applicability to all offences. [ 39 ] In addition, s. 718 of the Criminal Code of Canada states that the fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives: denunciation, deterrence, separation of the offender from society where necessary, rehabilitation of the offender, reparations to victims and to the community, promoting a sense of responsibility in the offender: 718.

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 that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 40 ] Likewise, in the textbook entitled, “ Stewart on Provincial Offences Procedure in Ontario (3ed.)”, Toronto, Canada: Earlscourt Legal Press, Inc., 2011, at p. 371, the author reiterated that the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles, but that the common-law and criminal law jurisprudence on sentencing also applies to regulatory or provincial offences.

Accordingly, the author indicates that a sentencing court in determining an appropriate sentence for a regulatory offence would have to consider such factors as general and specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity and consequences of the offence, any rehabilitation and remorse, proportionality, the offender’s record, and an offender’s ability to pay a fine [ emphasis is mine below ]: Unlike the Criminal Code , the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles .

Instead, common law and criminal law jurisprudence applies . For example, s. 718.1 of the Criminal Code provides that sentencing must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. This principle applies equally to sentencing for a provincial offence.

In addition, to the statutory provisions and sentencing jurisprudence, the court will consider general and specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity and consequences of the offence, any rehabilitation and remorse, proportionality, the defendant’s record, and ability to pay a fine . … [ 41 ] Ergo, when sentencing Joginder Singh Gujral in respect to the 8 regulatory offences he had committed, the sentencing objectives, as well as the other principles of sentencing set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code may be taken into account to arrive at a just and fit sentence.

[42] Furthermore, the author in the textbook, “Stewart on Provincial Offences Procedure in Ontario (3ed.)”, at p. 371, also referred tothe Supreme Court of Canada’s decision in R. v. Solomon, 2008 SCC 62 [2008] S.C.J. No. 55, where it had been held that themaximum sentence is not always reserved for the worst crime committed in the worst circumstances and that it may be imposed ifwarranted in light of sentencing principles applied in an individualized context and for the circumstances of the offence that had beencommitted.

The author also emphasized in her textbook that it is the finding of fact at trial that governs the sentencing hearing, since thefacts that constitute the essential elements of an offence do not lose their relevance on sentencing and would always be part of theconsideration on sentencing [emphasis is mine below]: Where a fine is imposed, appellate courts generally have declined to vary the sentence on the grounds that a fine is particularly withinthe discretion of the trial judge and should not be lightly interfered with. In R. v.

Solomon, the Supreme Court of Canada rules that the“worst case, worst offender” principle no longer operates as a constraint on the imposition of a maximum sentence or penalty where themaximum would otherwise be appropriate. The maximum sentence is not always reserved for the worst crime committed in the worstcircumstances, and it may be imposed if warranted in light of sentencing principles, applied in an individualized context and thecircumstances of the offence. The sentence must be proportionate to the gravity of the offence and the degree of the responsibility of theoffender.

The consequences of the commission of the offence, of themselves, do not elevate an offence to the “worst offence”. Amaximum sentence, as with any other sentence, is subject to appellate intervention only where the trial court applied the wrongsentencing principles or the sentence was clearly excessive in the circumstances. It is the finding of fact at trial that govern the sentencing hearing.

The facts that constitute essential elements of an offence do not losetheir relevance on sentencing and will always be part of the consideration on sentencing. … An accused must know what he is convictedof when making submissions on sentencing and only needs to make submissions based on the facts as found by the trial justice. … [43] And, similar to provisions in the Provincial Offences Act, ss. 723(1) and (2) of the Criminal Code, stipulates that the sentencingcourt for a criminal offence is required before determining the appropriate sentence to give the prosecutor and the offender anopportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

As well, the sentencing court is alsorequired to hear any relevant evidence presented by the prosecutor or the offender: Submissions on facts 723(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions withrespect to any facts relevant to the sentence to be imposed. Submission of evidence

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender. [44] In addition, under s. 724(1) of the Criminal Code, in regards to determining the appropriate sentence, the sentencing court for acriminal offence may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on bythe prosecutor and the offender: Information accepted 724(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedingsand any facts agreed on by the prosecutor and the offender.

(2) The Category Or Nature Of The Offences Committed By Joginder Singh Gujral.

[45] In respect to the nature of the 8 regulatory offences Joginder Singh Gujral had been convicted of committing, the 8 offences arestrict liability regulatory offences in which the fault element is negligence, and which only requires that the prosecution prove the actusreus element of the offence beyond a reasonable doubt but does not require the prosecution to prove any mens rea element for thatoffence. [46] Furthermore, in R. v. Chan, 2012 ABPC 272 [2012] A.J. No. 1023 (Alta. Prov.

Ct.), at paras. 32 and 33, Fradsham J.neatly summarized the sentencing objectives for regulatory offences and also noted that the objective of regulatory legislation is toprotect the public or broad segments of the public from the potentially adverse effects of otherwise lawful activity, and that regulatorylegislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involvingmoral fault to the protection of public and societal interests, and that regulatory offences are directed primarily not to conduct itself but tothe consequences of conduct, and that regulatory measures are generally directed to the prevention of future harm through theenforcement of minimum standards of conduct and care.

And, where regulatory offences involve a greater degree of moralblameworthiness on the part of the offender, Fradsham J. emphasized that the penalties imposed should reflect that greater moralblameworthiness. However, Fradsham J. also pointed out that in the case of little or no actual harm arising from the offence, the penaltyfor the violation may still be substantial, so as to deter others from violating the statute because the consequence of a future violationcould be very serious.

And, as a result, Fradsham J. concluded that sentences for regulatory offences must also take into account thepotential consequences of committing the particular offence [emphasis is mine below]: In the case at bar, the sentencing objectives which apply are: (1) to denounce unlawful conduct; (2) to deter Mr. Chan and other personsfrom committing offences; (3) to assist in rehabilitating the offender; (4) to provide reparation for harm done to the community; and (5)to promote a sense of responsibility in the offender, and acknowledgment of the harm done to the community.

The primary sentencingobjectives are denunciation and deterrence, followed by rehabilitation of the offender (including the promotion in him of a sense ofresponsibility for his offending behaviour). The restitution orders sought by the Crown, and not opposed by Mr. Chan, will address theobjective of providing reparation for the harm done. In concluding that general deterrence is one of the primary sentencing objectives, I am mindful that the offences to which Mr. Chan haspleaded guilty are regulatory offences. In R. v.

Kreft (2006), 2006 ABPC 258 407 A.R. 376, I had occasion to discuss thejurisprudence on the sentencing of regulatory offences. I continue to be of the view I set forth in paragraph 47 of Kreft: 47 In my view, the jurisprudence, including the cases of R. v. Wholesale Travel Group Inc., supra, (SCC), [1991]S.C.J. No. 79, R. v. Beach Motors Inc., supra, [2002] O.J. No. 4458 R. v. Virk., supra, [2002] O.J. No. 4102 and R. v Kirk (c.o.b B.A.Holdings), supra, 2005 ONCJ 352 [2005] O.J. No. 3316, when read together, lead to these conclusions: 1.

One starts with the general proposition that: "[t]he objective of regulatory legislation is to protect the public or broad segments of the public ... from the potentially adverse effects ofotherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and thedeterrence and punishment of acts involving moral fault to the protection of public and societal interests.

While criminal offences areusually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the preventionof future harm through the enforcement of minimum standards of conduct and care. ... [R]egulatory offences are directed primarily not to conduct itself but to the consequences of conduct. ... The concept of fault inregulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner ascriminal fault.

Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet aprescribed standard of care" (R. v. Wholesale Travel Group Inc., supra). 2. However, regulatory offences form a continuum ranging from the less serious to the very serious. As one approaches the "veryserious" end of the continuum, one is dealing with offences which are designed to address "inherently wrongful conduct" and for whichthere is a greater degree of moral blameworthiness on the part of the offending defendant.

Those regulatory offences which "if not aspecies in the family of fraudulent conduct are a close cousin" are examples of regulatory offences which involve a greater degree ofmoral blameworthiness on the part of the offender, and the penalties for them will reflect that. 3. Having said that, regulatory offences which do not involve inherently wrongful conduct (with its attendant moral blameworthiness)can still attract significant penalties.

Regulatory legislation has as its goal adherence to a particular standard of care by those involved inthe regulated activity, and the severity of the consequences of a failure to meet the legislated standard of care will vary with the regulatedactivity involved and nature of the failure. A defendant who commits an offence under a regulatory statute may cause little, if any, actual

damage as a result of his or her particular actions. In other words, the acts of the defendant, while violating a provision of a regulatorystatute, may not in a particular case result in any significant actual harm. However, the provision of the regulatory statute which thedefendant violated may be such that violations of it in general have the potential to cause serious harm to the public.

Therefore, in thecase of little, or no, actual harm arising from the offence, the penalty for the violation may still be substantial so as to deter others fromviolating the statute because the consequence of a future violation could be very serious. As noted earlier, regulatory offences aredirected at the consequences of failing to abide by the legislated standards of care, not at the actual actions which constituted theviolation.

"Consequences" include not only actual harm resulting from the specific actions which constituted the offence, but also thatwhich could potentially result from the commission of the offence. Sentences for regulatory offences must similarly take into accountthe potential consequences of committing the particular offence. Examples of this concept are often found in environmental lawsentencing cases such as R. v. Van Waters & Rogers Ltd. (1998) 1998 ABPC 55 220 A.R. 315 (Alta. Prov. Ct.) and R. v.Terroco Industries Ltd. (2005) 2005 ABCA 141 367 A.R. 1 (Alta.

C.A.). [47] In addition, my colleague Madigan J.P. in R. v. Virk, [2002] O.J. No. 4102 (O.C.J.), at paras. 52 to 56, had considered thesentencing scheme for regulatory offences and had noted a different approach and application of sentencing objectives in the sentencingof regulatory offences in comparison to criminal offences. Madigan J.P. had also confirmed that absolute or strict liability offences donot involve moral blameworthiness, and that for absolute or strict liability offences the rehabilitation of the offender and publicprotection become more important in sentencing.

On the other hand, Madigan J.P. noted that in regards to the continuum of offences, asa regulatory offence approaches or becomes more like a criminal offence where there is an element of mens rea or moralblameworthiness, then the objectives of denunciation, retribution and deterrence gain more importance in sentencing [emphasis is minebelow]: R. v. Wholesale Travel Group Inc. (1991) (SCC), 67 C.C.C. (3d) 193 (S.C.C.) is authoritative caselaw in which theSupreme Court of Canada addresses the distinction between regulatory offences and criminal offences at pages 237-238.

To paraphraseJustice Cory, criminal law is intended to punish “inherently wrongful conduct”, whereas regulatory offences are aimed at enforcementof “prescribed standards of care” which society wishes to establish and promote. Further, public welfare offences are “directed not toconduct itself but to the consequences of conduct” and do not imply “moral blameworthiness” in the same manner as criminal fault. Most public welfare offences are properly classified as either absolute liability or strict liability offences.

Very few regulatory offencesrequire the Crown to prove wrongful intention or knowledge in addition to the prohibited conduct. Not all public welfare offences are equal in gravity. Some are more serious than others. Those requiring proof of wrongful intention orknowledge are more serious, for sentencing purposes, precisely because the prosecution has proven a guilty mind in addition to theprohibited conduct. Convictions for absolute liability and strict liability offences usually suggest “…nothing more than the defendant hasfailed to meet a prescribed standard of care”.

However, offences like those alleged and proven in this case tend to involve an element offault or moral blameworthiness in that they prohibit conduct which is inherently wrong. Quite undeniably, the intention to defraud andthe intention to lie qualify as morally blameworthy. … On a continuum of offences running from public welfare offences to true criminal offences, the offences of which Mr. Virk has been foundguilty are much more serious and therefore more comparable to criminal offences than to public welfare offences. Obviously, this hassignificance for sentencing.

In the case of most regulatory offences, the sentencing court usually attempts to balance the competing considerations in favour ofrehabilitation of the offender and protection of the public. However, in cases involving proof of mens rea, the balance must favour theobjectives of denunciation, retribution, and deterrence. Whereas mens rea offences involve some degree of moral blameworthiness orfault, absolute liability and strict liability offences do not. This distinction justifies the difference in approach to sentencing. [48] But more importantly, Cory J. in R. v.

Wholesale Travel Group Inc., (SCC), [1991] S.C.J. No. 79 (S.C.C.), atpara. 219, emphasized that regulatory schemes can only be effective if they provide for significant penalties in the event of their breach[emphasis is mine below]: Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be

rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Noris the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes.The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the Exxon Valdez can leave no doubt as to thepotential human and environmental devastation which can result from the violation of regulatory measures. Strong sanctions includingimprisonment are vital to the prevention of similar catastrophes.

(3) Deterrence Must Be Given Paramount Consideration In Arriving At A Fit And Just Sentence For Public Welfare Offences [49] In R. v. Cotton Felts Ltd. (1982), (ON CA), 2 C.C.C. (3d) 287, [1982] O.J. No. 178, which is the prevailingcase for sentencing of regulatory offences in Ontario, Blair J.A. for the Court of Appeal for Ontario, at paras. 18 to 24, established thatthe primary factor for a sentencing court to consider in determining the appropriate sentence for public welfare or regulatory offences isdeterrence.

And, in respect to the imposition of a fine for deterrence, Blair J.A. held that the fine must be substantial enough to warnothers that the offence will not be tolerated, but without being harsh, and that the fine must also not appear to be a mere licence fee forillegal activity [emphasis is mine below]: Since, as far as we are aware, this is the first appeal against sentence under the Act to reach this Court, it is incumbent on us to considerthe proper principles governing the imposition of fines for this type of offence.

As my brothers and myself made clear during argument,the range of fines imposed by the County Court appears inordinately low for these offences. It is recognized that in the circumstances ofparticular cases such fines might have been justified, but it would be error for any sentencing judge to accept these County Court appealdecisions as establishing a binding range of fines in these cases. Sentencing for this type of offence cannot be achieved by rote or byrule.

In every case it is the responsibility of the sentencing judge to impose a fit sentence, taking into account the factors upon which Inow propose to comment. The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Acthas a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfarestatutes designed to establish standards of health and safety in the work place.

Examples of this type of statute are legion and cover allfacets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern societysuch regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliabilityby various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by finesimposed on offending corporations.

The amount of the fine will be determined by a complex of considerations, including the size of thecompany involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximumpenalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards bydeterrence: see R. v. Ford Motor Company of Canada Limited (1979), (ON CA), 49 C.C.C. (2d) 1, per MacKinnonA.C.J.O at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases therein cited.

The paramount importance of deterrence in this type of case has been recognized by this Court in a number of recent decisions. Anexample is provided by R. v. Hoffman-LaRoche Limited (No.2) (1980), (ON SC), 30 O.R. (2d) 461. In that case Mr.Justice Linden imposed a fine of $50,000 for an offence under the Combines Investigation Act, R.S.C. 1970, c. C-23, and stated theprinciples governing the amount of a fine as follows: In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case.

The amount must besubstantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist. The amount mustbe one that would be felt by this defendant. It should also serve as a warning to others who might be minded to engage in similarcriminal activity that It will be costly for them to do so even if they do not succeed in their illegal aims.

The sentence was upheld by this Court, (1981), (SCC), 62 C.C.C. (2d) 1, where my brother Martin said at pp. 160-161: A careful examination of those reasons satisfies me that he considered that general deterrence was the paramount factor to be consideredin arriving at an appropriate sentence. Another example is provided by this Court's decision in R. v. K-Mart Canada Limited (1982), (ON CA), 66 C.C.C.(2d) 329.

In that case the Court increased a fine of $25,000 to $100,000 for a company convicted of conspiring to interfere with theformation and operation of a trade union, contrary to the Labour Relations Act, R.S.O. 1970, c. 232, now R.S.O. 1980, c. 228. In so doingChief Justice Howland had this to say at p. 332:

In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle. The fine must not betantamount to a licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will notbe tolerated. The main factors in the computation of a fine expressed in these decisions are the same as those expressed by Judge Dnieper. Withoutbeing harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a merelicence fee for illegal activity.

With reference to these offences, deterrence is not to be taken only In its usual negative connotation of achieving compliance by threat ofpunishment. Recently my brother Zuber in R. v. Ramdass, a judgment pronounced on November 17, 1982, referred to deterrence in amore positive aspect. There he was dealing with a driving offence and he quoted an earlier unreported decision of this Court in R. v.Roussy, [1977] O.J.

No. 1208 (released December 15, 1977), where the Court stated: But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the termdeterrent in its widest sense. A sentence by emphasizing community disapproval of

an act, and branding it as reprehensible has a moralor educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regardconduct as reprehensible will not likely commit such

an act. This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of oursociety for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare ofthe public.

(4) The Sentence Must Be Proportional [50] In R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J. No. 28, at para. 40, Lamer C.J.C., for theSupreme Court of Canada, had also emphasized that the fundamental sentencing principle in regards to the quantum of sentence to beimposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender[emphasis is mine below]: … It is a well-est

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