R. v. Kueviakoe, 2015 ONCJ 681

ONTARIO COURT OF JUSTICE DATE: 2015·12·01 COURT FILE No.: Halton 121112000953 CITATION: R. v. Kueviakoe , 2015 ONCJ 681 BETWEEN: HER MAJESTY THE QUEEN — AND — Ekue KUEVIAKOE Before Justice D.A. Harris Heard on January 19, 20, 21, April 23 and August 19, 2015 Reasons for Judgment released on December 1, 2015 S. Antoniani ............................................................................................ counsel for the Crown A.

Jiwa .................................................................. counsel for the defendant Ekue Kueviakoe HARRIS J.: INTRODUCTION [ 1 ] Ekue Kueviakoe was initially charged with 120 offences contrary to the Income Tax Act . [ 2 ] Proceedings began on January 19, 2015 which was the first day of ten days set aside for the trial. [ 3 ] Crown counsel elected to proceed summarily. [ 4 ] She then asked me to withdraw counts 58 and 110. [ 5 ] Mr. Kueviakoe plead not guilty with respect to the remaining counts. [ 6 ] All of the witnesses had been subpoenaed to attend that day.

Most of them were bound over to other specific days to testify. We began the trial. Six witnesses testified during the first two days. [ 7 ] On January 21, 2015, the third day of the trial, Mr. Kueviakoe indicated that he wished to change his plea with respect to certain charges. [ 8 ] He entered guilty pleas with respect to counts 4 through 7, 19 through 41, 44 through 54, 59 through 65, 71 through 93, 96 through 106, and 111 through 117. [ 9 ] Both counsel then agreed that I should enter findings of guilt with respect to counts 4 through 7, 19 through 41, 44 through 54, and 59 through 65.

I entered conditional stays with respect to counts 71 through 93, 96 through 106, and 111 through 117. The remaining charges were withdrawn at the request of Crown counsel. [ 10 ] The matter was then adjourned to a later date for counsel to make submissions as to sentence. [ 11 ] In the meantime, counsel for Mr. Kueviakoe brought an application requesting that the proceedings be stayed as a result of alleged abuse of process and alleged infringements of Mr. Kueviakoe’s right to be presumed innocent and his right to be free from

cruel and unusual punishment as guaranteed by sections 7 , 11(

d) and 12 of the Canadian Charter of Rights and Freedoms . [ 12 ] After hearing from counsel for Mr. Kueviakoe I found that there was no merit to the application and dismissed it, indicating that I would provide my reasons at a later date. Those reasons are included below. [ 13 ] I then heard submissions as to sentence. [ 14 ] Crown counsel suggested that I should sentence him to fines amounting to 150 % of the taxes evaded plus imprisonment for between 6 and 12 months. [1] [ 15 ] Counsel for Mr. Kueviakoe suggested that I grant Mr.

Kueviakoe conditional discharges or in the alternative impose fines amounting to 50 % of the taxes evaded. He subsequently amended his position to suggest that I impose a conditional sentence of imprisonment for 90 days along with minimum fines. [ 16 ] I am satisfied that Mr. Kueviakoe should be fined at a rate of 100 % and that he should be sentenced to a conditional sentence of imprisonment for one year. My reasons for this are also set out below. [ 17 ] I will first set out my reasons for dismissing the application for a stay of proceedings.

STAY OF PROCEEDINGS [ 18 ] The law in this regard is very straightforward.

A judicial stay of proceedings is “the most drastic remedy a criminal court can order”. [2] It is an exceptional remedy reserved for the clearest of cases. [3] [ 19 ] These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused's trial (the "main" category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category). [4] [ 20 ] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements: 1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; 2) There must be no alternative remedy capable of redressing the prejudice; and 3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. [5] [ 21 ] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion.

The issue is not one of concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system. [6] [ 22 ] The case before me falls into the residual category of cases: state conduct that contravenes fundamental notions of justice, which undermines the integrity of the justice system. [ 23 ] In the circumstances of the case before me, I was satisfied that a stay would most definitely not be an appropriate remedy. I came to this conclusion for the following reasons. [ 24 ] Firstly, there was no prejudice to Mr.

Kueviakoe’s right to a fair trial. [ 25 ] He plead guilty. He did so knowing that by pleading guilty, he was giving up his right to a trial and was admitting the essential elements of the offences. [ 26 ] Further, the alleged violations of his rights were unrelated to the charges against him. He was complaining that the agents of the Canada Revenue Agency had not processed his own personal income tax returns and those of his wife in a timely fashion. The charges against him did not refer to these tax returns. Rather, they referred to tax returns that Mr.

Kueviakoe had assisted others with. [ 27 ] Secondly, there was an alternative remedy perfectly capable of redressing any prejudice, had there been any, to Mr. Kueviakoe. That remedy would have been a reduction in the sentence that I imposed. [ 28 ] In that regard, counsel for Mr. Kueviakoe did suggest that I not only credit him with the $73,671.05 that the Canada Revenue Agency had allegedly withheld improperly from Mr. Kueviakoe but that I should give him enhanced credit at a rate of 1.5:1. Counsel

was however unable to provide me with any meaningful justification for applying principles regarding the treatment of pretrial custody to the application before me. [ 29 ] Mr. Kueviakoe fell far short of establishing that this was an appropriate case for a stay or for any other Charter relief and accordingly I dismissed his application. [ 30 ] I will now set out my reasons for sentence. [ 31 ] I will first address the law with respect to conditional sentences of imprisonment. CONDITIONAL SENTENCE OF IMPRISONMENT [ 32 ] The conditional sentence came into being when

section 742.1 of the Criminal Code was proclaimed in 1996. [ 33 ] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community." [7] [ 34 ] The Supreme Court of Canada stated further that an offender who meets the criteria of

section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [8] [ 35 ]

Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence.

These are: 1. the offender must be convicted of an offence that is not specifically excluded by the legislation; 2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; 3. the court must impose a term of imprisonment of less than two years; 4. the safety of the community would not be endangered by the offender serving the sentence in the community; and 5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 36 ] The first four criteria are prerequisites to any conditional sentence.

These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 37 ] In Mr. Kueviakoe’s case, the first four prerequisite criteria have been satisfied. [ 38 ] His offences are not excluded pursuant to

section 742.1 . [ 39 ] Nor are they punishable by a minimum term of imprisonment. [ 40 ] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years. [ 41 ] Finally, I find that Mr. Kueviakoe serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has stayed out of trouble since being charged with the current offences.

I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence. I have no doubt that any activity on his part will be scrutinized so closely by Canada Revenue Agency as to prevent his return to the tax preparation business. [ 42 ] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code .

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING [ 43 ] The fundamental purpose of sentencing as expressed in

section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 44 ] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [9]

[ 45 ] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. [10] [ 46 ] Doherty J.A. of the Ontario Court of Appeal stated in R. v.

Hamilton that: The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. [11] [ 47 ] He went on to state that: The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence, especially the fault component , and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [12] [ 48 ] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v.

Priest : The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case.

Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [13] [ 49 ] On this point, Doherty J.A. concluded by stating that: Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction.

The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account. [14] [ 50 ] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered. [ 51 ] I must specifically consider

section 718.2(

d) which provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”. [ 52 ] I must also consider the impact of

section 718.2(

e) which provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” [ 53 ] The Supreme Court of Canada discussed the application of this

section in Gladue v. The Queen and said that

section 718.2 (

e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [15] [ 54 ] The Supreme Court also noted that

section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation.

Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate an offender. [16] As a general matter restorative justice involves some form of restitution and reintegration into the community. [17] [ 55 ] I must also note that the Supreme Court of Canada expressly said in R. v.

Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" [18] although it is not as effective as a sentence of real imprisonment. [ 56 ] Crown counsel argued that Mr. Kueviakoe’s offences involved a breach of trust. If so, the Criminal Code specifically provides that this is an aggravating circumstance and that his sentence should be increased to account for that. [19] [ 57 ] I do not agree however that these offences involved a breach of trust.

I will discuss this further in my comments with respect to the impact on any victims. [ 58 ] All of the offences remaining here are offences contrary to section 239(1)(

a) or section 239(1.1)(

a) of the Income Tax Act . The punishment available for both offences is the same. Where Crown counsel has proceeded summarily, the potential penalty is both a fine of “not less than 50 % and not more than 200 %” of the amount evaded and imprisonment for a term not exceeding 2 years. [ 59 ] Before I can apply these principles of sentencing however I must look at the facts underlying these offences, their impact upon any victims and the background of Mr. Kueviakoe. THE OFFENCES [ 60 ]

Section 239.(1)(

a) of the Income Tax Act makes it an offence for anyone to make, or participate in, assent to or acquiesce in the making of, false or deceptive statements in an income tax return.

[ 61 ]

Section 239.(1.1) (

a) makes it an offence for a person to obtain or claim a refund or credit under the Income Tax Act to which the person or any other person is not entitled or to obtain or claim a refund or credit in an amount that is greater than the amount to which the person or other person is entitled by making, or participating in, assenting to or acquiescing in the making of, a false or deceptive statement in a return, certificate, statement or answer filed or made under the Act . [ 62 ] Mr.

Kueviakoe was employed fulltime by Bell Canada. [ 63 ] He also began a side business of preparing tax returns for others, and providing tax refunds and payday loans. [ 64 ] His clients were often coworkers or others who heard of him by word of mouth. The word that was heard was that Mr.

Kueviakoe could obtain tax refunds that no other tax preparer could. [ 65 ] He accomplished this by providing his clients with fraudulent receipts for charitable donations and by claiming employment expenses that his clients were not entitled to. [ 66 ] The guilty pleas acknowledged false claims in 45 Income Tax Returns filed on behalf of more than 20 clients for the taxation years 2004 through 2009. These false claims cost the federal government approximately $70,365.55 in taxes. [20] [ 67 ] Mr.

Kueviakoe further admitted that he submitted many more tax returns on behalf of clients during the relevant period. [21] [ 68 ] Each taxpayer paid Mr. Kueviakoe a fee for these services. VICTIM IMPACT [ 69 ] I intend to discuss firstly the impact that these offences had both on the Canada Revenue Agency (and by extension all Canadians). [ 70 ] The actions of Mr. Kueviakoe resulted in the non-payment of more than $70,000 in taxes by the various clients. [ 71 ] The Canada Revenue Agency reassessed each of those people such that they are responsible for paying their portion of those taxes.

The Canada Revenue Agency has therefore already been reimbursed. [ 72 ] The individual taxpayers might also have been assessed administrative penalties for their

part in this. If so, one might argue that they too may have been victimized by Mr. Kueviakoe. [ 73 ] I do not view them as victims. I am satisfied that each of them knew or ought to have known that what they and Mr. Kueviakoe were doing was fraudulent. At the very least, the circumstances here clearly fell into the category of “where something seems too good to be true, it probably is”. [ 74 ] In that regard there was no breach of trust between Mr.

Kueviakoe and the individual taxpayers. [ 75 ] I note that the income tax system in Canada relies to a large extent on the honesty of the individual taxpayers (or their representatives, such as Mr. Kueviakoe) in reporting correct information in their tax returns but I find that there was no breach of trust by Mr. Kueviakoe with the Canada Revenue Agency such as to bring these offences within s. 718.2 (a)(iii) of the Criminal Code . BACKGROUND OF MR. KUEVIAKOE [ 76 ] I received the following information about Mr. Kueviakoe from his counsel. Some of it is confirmed in the reference letters filed on behalf of Mr.

Kueviakoe. [ 77 ] Mr. Kueviakoe is now 43 years old. [ 78 ] He is married and has three children, aged 7, 12 and 16. The middle child has sickle cell disease and receives monthly treatment at the Hospital for Sick Children. His wife is being treated for breast cancer and is now working from home. [ 79 ] Mr. Kueviakoe completed high school and began university before fleeing from Togo to Canada. [ 80 ] He worked for Bell Canada from 1992 until he entered his guilty plea in this case.

He was then fired. [ 81 ] He had tried to start various businesses before going into the business of tax preparation, tax refunds and payday loans. [ 82 ] He is not working now. [ 83 ] His residence is jointly owned with his wife and subject to a mortgage. They have few assets between them. [ 84 ] He is actively involved in his church, giving generously of his time and his money. [ 85 ] He had no criminal record prior to this. ANALYSIS

[ 86 ] Mr. Kueviakoe has committed very serious offences. [ 87 ] He perpetuated a significant fraud against the Canada Revenue Agency and by extension the taxpayers of Canada. The monetary loss flowing directly from that exceeded $70,000. [ 88 ] He did this on a continuous basis over a prolonged period of time. [ 89 ] There are a number of good things that can be said on behalf of Mr. Kueviakoe but virtually all of them come with significant qualifications attached to them. [ 90 ] He had no prior criminal record. This however can be said of many fraudsters.

Their good reputation is often key to them being able to perpetuate their frauds. [ 91 ] He has been very active in his church. This is partly offset by the fact that he appears to have possibly abused his relationship with the church in order to provide his clients with fraudulent receipts for charitable donations. [ 92 ] He did plead guilty. I take that to be an acknowledgement of guilt and an expression of remorse.

Any mitigation of sentence flowing from that however is lessened by the fact that he entered guilty pleas only after all of the witnesses had appeared in court at least once and after some of them had appeared again and given evidence clearly implicating him in these offences. He then brought the sincerity of any acknowledgement of guilt and expression of remorse further into question with his frivolous Charter application. [ 93 ] He has lost his legitimate job as a result of these offences.

It will be difficult if not impossible for him to find other employment offering the same level of income and benefits. [ 94 ] In addition he has lost standing in the community. [ 95 ] He and his wife have been, and can expect to continue to be, subjected to very close scrutiny by the Canada Revenue Agency with respect to their personal income tax returns. [ 96 ] Denunciation and general deterrence are the primary principles of sentencing that are applicable in this case.

It is necessary to deliver a clear message to anyone who is thinking of committing a crime like these that we, as a society, will not tolerate that. [ 97 ] I cannot however lose sight of the principles of rehabilitation and restorative justice. [ 98 ] We do not know how much Mr. Kueviakoe received in fees for preparing the fraudulent tax returns. I am certain that these fees will be more than offset by the fines that I will be imposing here. These fines can and should serve as a deterrent to Mr.

Kueviakoe and to like-minded individuals and not be looked upon as simply a licence fee for committing such offences. [ 99 ] I again note that the Supreme Court of Canada and the Ontario Court of Appeal have expressly said that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" [22] although it is not as effective as a sentence of real imprisonment. [ 100 ] Finally, I point out that, were I sending Mr.

Kueviakoe to jail, I would sentence him to imprisonment for less time than I am imposing here. [ 101 ] I am satisfied that the combination of significant fines and a conditional sentence of imprisonment is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. SENTENCE [ 102 ] For all of the above reasons, I sentence Mr. Kueviakoe to concurrent conditional sentences of imprisonment for one year, to be served in the community. In addition, I impose a fine of 100 % for each count for a total of $70,365.55.

A count by count breakdown of the fines is provided in Appendix A, attached to these reasons. [ 103 ] The terms of the conditional sentences of imprisonment will require that Mr.

Kueviakoe: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor; 4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation; 5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor; 6. cooperate with his supervisor.

He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;

7. live at 2258 Grouse Lane, Oakville, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance; 8. a home confinement condition will be in effect for the first 8 months of the sentence 9. during that time he will remain in his residence at all times except (

a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life, (

b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling), (

c) for going directly to and from or being at school, employment, court attendance, religious services and legal or medical or dental appointments, or looking for work, (

d) he will confirm his

schedule in advance with his supervisor setting out the times for these activities (

e) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times. 10. During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition. 11.

For the duration of the conditional sentence, he will not seek, obtain or continue any employment that involves preparing income tax returns or advising anyone with respect to the preparation of income tax returns, or become a volunteer in any church in a capacity that involves being in a position of trust or authority with respect to issuing or handling receipts for charitable donations. [ 104 ] I am giving Mr. Kueviakoe two years in which to pay the fines. Released: December 1, 2015 Signed: “Justice D. A. Harris” APPENDIX A – FINES IMPOSED BY COUNT COUNT NUMBER AMOUNT OF FINE 4. 1548.58

5. 1270.50 6. 903.52 7. 1578.72 19. 1569.00 20. 552.00 21. 2576.52 22. 994.28 23. 1365.56 24. 2534.16 25. 1570.48 26. 264.00 27. 552.00 28. 977.35 29. 572.59 30. 986.05 31. 1238.35 32. 2468.46 33. 870.00 34. 2576.75 35. 1260.73 36. 2355.86 37. 849.65 38. 1134.00 39. 2494.39 40. 1509.00 41. 1103.84 44. 1279.00 45. 1262.47 46. 1277.00 47. 1712.50 48. 1640.63 49. 2808.75 50. 1326.30 51. 2474.84 52. 1416.20 53. 1773.02 54. 1247.00 59. 2576.75

60. 1132.00 61. 3653.81 62. 1596.00 63. 1192.00 64. 2144.94 65. 2176.00