Keith took my advice! At least twice in postings in this discussion I've given Keith a guaranteed path to winning his appeal of his tax evasion and counseling fraud convictions. Readers might recall that Keith has a unique interpretation of the Supreme Court of Canada decision ("Supreme Court") in
Stewart v. Canada.
Stewart v. Canada
[2002] 2 SCR 645, 2002 SCC 46
http://canlii.ca/t/51sg
To dullards like Burnaby49 and apparently everyone else who's ever read this decision it relates to the deductibility of expenses in businesses losing money. Can the expenses in excess of income be deducted against other income or not? That's it. But Keith saw a deeper meaning. In Keith's view the superficial, obvious interpretation of
Stewart, that it related to expense deduction missed the entire point of the decision. Keith realized that
Stewart is actually a blueprint, written by the Supreme Court to allow Canadians to legally stop paying income taxes. As he reads
Stewart the Supreme Court has given Canadians two options regarding paying taxes. We can chose to pay or not! All entirely legal. If we chose to pay income tax then we just go on doing what we are doing, declaring our incomes and paying taxes on them. But if we decide that we don't want to pay taxes then all we have to do is declare that our income comes from a personal endeavor, a hobby. That's it! In Keith's interpretation
Stewart exempts income from hobbies from being taxable. And the best part of his interpretation is that it really doesn't matter how you make your money. It's solely up to the individual to decide if his income is from a personal endeavor or not. If he decides that it is, even if it's wages from slaving away on a warehouse loading bay, the individual can self-designate it as sourced from a personal endeavor. Since this is a Supreme Court decision, the highest legal authority in Canada, once you say that your money is from a personal endeavor, nobody can override your decision. Not the CRA, the Tax Court, or any other court. One simple sentence and you never pay income tax again.
Now I have to confess that I can't see anything in
Stewart that in any way supports Keith's interpretation. But my tax background is limited to a 35 year career as an income tax auditor in the Canada Revenue Agency. So what do I know about the interpretation of the Income Tax Act and the statutory analysis of income tax related judgments compared to Keith? Unfortunately for Keith the Canada Revenue Agency, the Supreme Court of British Columbia, and the British Columbia Court of Appeal were just as obtuse as I am in comprehending the true meaning of
Stewart. This had the unfortunate result of getting Keith convicted of income tax evasion and counseling income tax evasion.
Stewart was released seventeen years ago. It's been cited in 276 different decisions. If Keith is correct all those lower courts decisions which have relied on
Stewart in respect to expense deduction issues are wrong because
Stewart has nothing to do with expenses. The Supreme Court must be extremely frustrated with this misunderstanding of the real meaning of their decision and are probably avidly awaiting an appeal on an issue that addresses what the decision is really about. So I suggested to Keith that he appeal his convictions to the Supreme Court on the basis that he committed no offense because he just followed the correct interpretation of
Stewart. You can't be guilty of income tax evasion if the Supreme Court gives you permission not to pay taxes. If his interpretation is correct, the Supreme Court will welcome his appeal with open arms.
And he's done it! He's made leave to Appeal to the Supreme Court of Canada! Or he's at least trying to. How do I know? I spent Monday, May 27th at his appeal hearing regarding his sentencing. His pending leave to appeal application was one of the issues considered.
So let's start at the beginning, 10AM Monday morning May 27. Since this is Keith's last appeal his bail ended this morning and he had surrendered himself into custody before the hearing. So he was led into the courtroom from the lockup by a sheriff. Same courtroom as Keith's conviction appeal and a bit more crowded regarding spectators. Not because Keith had more but the room had been scheduled for two appeals today and we were first. However there were four spectators for that one. Keith had, as ever, his father, Michael Millar, and me. Keith had to borrow a pen from the sheriff, I assume because he'd already surrendered his personal possessions. He discussed something with Crown counsel before the hearing started, something about an application he wanted to make. Then the three judge bench came in and we started. Note that when I relate that the "court" says something it can be any one of the three judges.
Lawson was up first. He said that he had a preliminary matter to deal with. Court cut in to say that there was another matter to be heard (second appeal) and asked Lawson and Crown how long they thought they'd take. Lawson said an hour, Crown said far less than an hour. So court told anyone involved in the other appeal they could leave until 11:30 (it was now 10:05) but they were welcome to stay. For whatever reason they stayed.
Court - I believe you are attempting to be relieved of the responsibility of representing yourself while the Supreme Court of Canada decides on your application. This was the first that I'd heard he'd appealed to the Supreme Court. Apparently he'd made an application for leave to appeal at the Supreme Court. That was of no concern to this court but what was of concern was that he'd made an application here to have these proceedings stayed, essentially stopped temporarily, while his Supreme Court application was reviewed and either accepted or denied. His claimed authority for this request was section 65.1 of the Supreme Court Act.
Stay of execution — application for leave to appeal
65.1 (1)
The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
Crown counsel was quick to point out that Lawson hadn't "perfected" his appeal to the Supreme court so he didn't qualify under 65.1.
Court - 65.1 won't help you to stay your sentencing. Section 679(1)(c) of the Criminal Code applies.
This is the cited Criminal Code section;
Release pending determination of appeal
679 (1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,
(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678;
(b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or
(c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal.
The court said "Unfortunately the registry didn't advise you that you have to look at that section to apply for bail." Court said again that 65.1 was not going to help him.
Lawson wanted to modify his application to have the court grant relief. "If I'm in jail I'll be prejudice and it will be impossible to continue the appeal."
Crown said it hadn't been provided with any information. Lawson wants a stay of the warrant of committal which is operative based on this appeal.
Court - Is he currently on bail?
Crown - Yes, pending this hearing. The problem for Lawson is that he has not perfected a filing for application for leave. 65.1 of the Supreme Court Act gives this court authority to stay a warrant. There is no authority that this court can stay a warrant under the circumstances. Crown cited a Saskatchewan case I didn't catch that did not support Lawson's position. Crown said that the individual in that case was already in jail and wanted parole. Not on point but the closest case Crown could find.
Lawson, as usual, had handicapped himself with his haphazard approach to court rules and applications. He only filed all of this on Friday, three days ago. So Crown had to scramble over the weekend to research the issue. Since Lawson was making the application this was really his responsibility to do this. Lawson's casual approach to deadlines and rules is, I think, why the Crown said "There is no authority that this court can stay a warrant under the circumstances". As I understand it (I'm not familiar with these provisions) Lawson has applied for relief under 65.1 of the Supreme Court Act which states;
The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
So the legislation he's relying on requires him to have served and filed a notice of application for leave to appeal before he can apply here to have a stay these proceedings. But he'd screwed up on his application for leave to appeal and it wasn't filed yet. Since there is no filed notice of application for leave section 65.1 didn't, as Crown pointed out, apply to Lawson.
Anyhow the court seemed as confused as I was;
Court - Sorry, I'm still back at square one. Where do we have authority to stay?
Crown - 65.1(2) of the Supreme Court Act. This is the section Crown had just referenced;
Additional power for court appealed from
(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.
Court - 65.1(2) allows an order to be made before filing but we're still back to (1) for allowing the warrant (note - the warrant for committal to send Lawson to jail now that his bail has expired).
Crown - Yes, this does not assist him. I have not found any authority that the Court of Appeal can stay a sentence.
Court - We can stay a sentence imposed by this court but I don't see how it can be of assistance if the sentence is imposed by another court. I take it he is not in custody until the end of the hearing.
Crown - If this court confirms sentencing he will be put into custody. If court reserves he is entitled to bail but he doesn't qualify for a stay of sentence.
Court - I don't anticipate that the court can give judgment today so this matter is more relevant after the hearing.
Now for an intervention by Burnaby49 to explain as best I can what this last part was all about. 65.1(2) of the Supreme Court Act allows the Court of Appeal to stay the execution of a court order when the court is facing Keith's situation; a stated intention to file a notice of application for leave to appeal to the Supreme Court where the notice is not yet filed. But, critically, this section only allows the Court of Appeal to stay a court order that it has, itself, issued. However the sentencing warrant that Keith wants stayed was issued by the Supreme Court of British Columbia, the trial court. So the court of Appeal doesn't have the jurisdiction to order it stayed.
Note that through all of this Lawson just stood there and let Crown and court do the heavy lifting on his behalf. As best I can tell he had no clue about how any or all of these sections interacted. He probably found 65.1(1) of the Supreme Court Act and decided to give it a shot without doing the required paperwork (filing an application for leave to appeal) to validate it. Just something else thrown in as part of his desperate attempt to stay out of jail. But neither the Court of Appeal nor the Crown seemed familiar with the ramifications of these provisions and, since Keith had just tossed this argument in a few days ago, nobody had been able to adequately researched his claim. So the Crown really couldn't advise the court on it and the court punted by basically saying that they'd worry about it later.
Keith faces another problem in the application of the three sections cited, one not addressed by the court or Crown. Even if he had done everything correctly and fit foursquare into any relief provided by one these section this relief is not an automatic right but is at the discretion of the court. All three subsections, 65.(1), 65.(2), and 679(1)(c) use the word "may" in allowing the court authority to grant a stay, not "shall".
So what factors would the court chose in exercising its discretion to grant a stay? I assume public safety, a factor in Keith's favour since he is clearly not in any way a public risk. They may also consider the chance that Keith might pull a Winston Shrout and make a run for it. Given Keith's history, unlikely. But I assume that they'd also consider the merits of his appeal to the Supreme Court of Canada. Followers of this discussion who read my report on Keith's conviction appeal hearing are aware that the Court of Appeal clearly thought that Keith's appeal had no merit whatever. In my opinion there is no chance whatever that the Supreme Court of Canada will grant Keith leave to appeal and I'm guessing that the judges in the Court of Appeal share this opinion. Given this what is the point of granting him a stay?
Anyhow, with all the technical preamble over, it was finally time to start the actual appeal hearing. The court told Keith that they'd read his factum so he could proceed. Keith said that there were two errors in his sentencing decision that he considered essential elements rather than aggravating factors. He said that he was aware that his eighteen month term of incarceration was on the low end of the scale for the offenses he was convicted for (range 6 months to 5 years) but he still felt that he should have been given a conditional sentence (note - a conditional sentence is served at home rather than in jail and allows for freedom to work, medical appointments, etc.). It was a mistake by the trial judge not to allow him a conditional sentence. His two reasons were;
1 - He didn't have a phone number - It took me a few seconds to track this one too. Apparently he thinks that he would have been given a conditional sentence had he had his own phone number rather than relying on his wife's phone. I missed his point on this but I think he said that some rule required he have his own phone to be allowed a conditional sentence and, had he been told of this, he would have got one.
2 - "Judge said that a conditional sentence would leave me in the same position as a stay at home mother. This isn't true. Judge was hard on me by saying this."
This is what the judge wrote in the sentencing judgment regarding the above;
[101] The Crown submits that while in some cases a conditional sentence order can be crafted to address denunciation and deterrence, it is difficult to see how this could be done in this case. Counsel on behalf of Mr. Lawson did not suggest how denunciation and deterrence could be addressed in this case, where a term of house arrest would keep Mr. Lawson in the exact same circumstances in which he is currently living as a stay-at-home parent. Furthermore, it is understood that Mr. Lawson does not have either a landline telephone or a cellular phone to facilitate either electronic or phone call monitoring. In addition, his ability to perform community service hours would likely be limited by his health issues and childcare obligations.
Note that the judge did not, as Lawson claimed, compare him to a "stay at home mother". She'd compared him to himself, saying that a conditional sentence would really be no different than the life he was currently living.
Then he discussed how the judge didn't believe his statement of remorse. He wanted the Court of Appeal to reconsider the issue of whether the remorse he claimed to show at his sentencing hearing was genuine. This is how the trial judge characterized his claimed remorse in her sentencing decision;
[49] Mr. Lawson submits that he is remorseful. His father’s letter to the Court says that Mr. Lawson is remorseful. In addressing the Court, Mr. Lawson’s words were articulate and carefully chosen as he read a prepared statement. Mr. Lawson said that he was “open to being corrected”. His remorse appeared to be equivocal and was prefaced in part by the word “if”. If he deprived the government of tax money he legitimately owed, then he was sorry. If he was wrong and the Court rules he is wrong, then he accepts his mistake, and he owes society an apology for the tax monies. He did not say words to the effect of: “I’m genuinely sorry for defrauding the Canadian public. I was wrong. It won’t happen again”. It is not apparent to the Court that his beliefs have changed to any significant degree.
[50] Even after a hard-fought trial, and sometimes especially after such a trial, genuine remorse can be mitigating. It is understandable, and perhaps even compelling, to mount a vigorous defence and then, if convicted, express sincere remorse. This is not that case. Here I agree with the Crown that Mr. Lawson’s words amount to an acceptance of the inevitable and are insufficient to offer any significant impact on the determination of an appropriate sentence.
R. v. Lawson,
2016 BCSC 2446
http://canlii.ca/t/gwp31
Keith immediately undercut his own argument by showing, at least to me, that he had no actual remorse at all. He still feels that he's done nothing wrong. He said that he'd used the word "if" in his statement of remorse at his sentencing hearing when discussing if he'd actually committed an offense. But he hadn't meant that. But then, at this point in this hearing, he showed that "if" was exactly what he'd meant. He told the Court of Appeal that what he'd done wasn't a real criminal act. It was a matter of reasonable interpretation. "While the Sydel case (a prior criminal conviction on exactly the same issues Lawson was convicted under) was against us I didn't consider it definitive. The interpretation of law could be difficult. I agreed that there was a possibility I was wrong."
He'd brought the
Sydel decision up in his sentencing hearing too where he'd suggested that actual criminal convictions, even if exactly to point with the issues at his trial, didn't have any precedential value unless they were appealed and the appeal failed. Since Eva Sydel had not appealed her conviction on income tax evasion he could still have had a reasonable belief that the Paradigm tax theories were correct.
This is what I wrote regarding Lawson's comments about
Sydel at his sentencing hearing;
I did a lot of effort to find what was reasonable. I didn't work with students who just wanted to evade tax. Sydel was not a watershed case. There were grounds for appeal but she did not appeal it so it had an inconclusive outcome. (That comment would be a surprise to Eva Sydel who spent a few years in jail as a result of the "inconclusive outcome"). He said that the Stanchfield case changed his mind. By then some of his students had been convicted of tax evasion. He tried to help them. He said that he voluntarily filed in 2008. He tried to meet "the accounting association and authorities" to get clear answers to his questions but didn't get them.
Lawson had a lawyer representing him at the sentencing hearing and he'd also commented on
Sydel with this astonishing statement;
He mentioned the Sydel case which I linked earlier. It was decided in May 2006 with a criminal conviction and a jail sentence for Eva Sydel. Lawyer said that the decision wasn't appealed so the case wasn't finished. This meant that Paradigm could come to its own conclusions on whether the decision was right or wrong. A novel interpretation! Under this standard any legal decision that is not appealed is worthless as precedence or as an indication of the right or wrongs of the issues litigated.
http://www.quatloos.com/Q-Forum/viewtop ... 41#p234345
Note that what Lawson is arguing here isn't that his remorse was genuine, but that he'd had a reasonable belief that he'd been acting correctly and legally in accordance with the Income Tax Act. So what he'd done, and been convicted of doing, was really just the result of an honest matter of misinterpretation of a technical issue. Not an argument I'd make to the Court of Appeal in trying to convince them that I was truly remorseful. The court picked up on this too;
Court - You have equivocal remorse.
Lawson - I was trying to interpret.
Kennedy wasn't on point. It took time for me to see that a court ruled against us (note -
Kennedy, a 2000 decision was, like
Sydel, exactly to point. It took Lawson another nine years after the release of
Kennedy to see that "a court ruled against us"). This is
Kennedy;
Kennedy v. Canada (Customs & Revenue Agency
2000 CanLII 22837 (ON SC)
http://canlii.ca/t/1wd1t
Court - I don't see anything in the judgment that judge didn't understand your claim of remorse. At this point the three appeal judges took a few moments to review the transcripts again.
What I think the judge was getting at was the issue of credibility. The trial judge was the trier of fact. Once the judge came to a decision on any testimony this became a fact. If the trial judge reviewed and considered all of Keith's arguments about remorse and rejected them as not being credible this conclusion was a fact and appeals court are very reluctant to overturn trial court findings of fact unless they are clearly wrong. This is the "palpable and overriding error" standard set by the Supreme court of Canada in
Housen v Nikolaisen;
Housen v. Nikolaisen
[2002] 2 SCR 235, 2002 SCC 33
http://canlii.ca/t/51tl
Where the Supreme Court said;
The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. The reasons for deferring to a trial judge’s findings of fact can be grouped into three basic principles. First, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce. The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard. Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inferencedrawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.
A trial judge’s findings of fact will not be overturned absent palpable and overriding error principally in recognition that only the trial judge observes witnesses and hears testimony first hand and is therefore better able to choose between competing versions of events.
The palpable and overriding error standard is a very high hurdle to overcome. So I think that the chance of Keith winning on the issue of the trial judge making a mistake regarding his degree of remorse is so trivial as to be non-existent. In any case, as we've seen, he's not really showed remorse but has arguing, even in this court, that he'd just made an innocent error in interpreting tax law.
Lawson started discussing his conviction appeal. "In the sentencing decision the judge said that I had been deceitful". He brought up Carl Gustafson's testimony at his trial. Carl was another convicted Paradigm tax evader. He avoided a trial by pleading guilty and received a conditional sentence. Carl testified for the Crown at Lawson's trial. I'm not going to go back and dredge up his testimony (which I reported at the time). Carl has his own discussion here;
http://www.quatloos.com/Q-Forum/viewtop ... =50&t=9631
Lawson said that it was an error for the judge to say that Carl was providing evidence. Gus said that he'd found merit in the material (Paradigm publications). Lawson said that he was not trying to mislead. "I asked him (Gustafson during cross at Keith's trial) if he thought I was dishonest. Gus said no, not at all."
Lawson - "The judge said that Paradigm was an excuse for people caught evading tax. This was an error. Gus said that he didn't see it that way. The idea was not to hide this. We had faith in our interpretation. If we were wrong we weren't hiding things. In the context of Paradigm provisions we filed accurate returns. The judge didn't give consideration to this, that we weren't concealing or hiding. We were honest and forthright. We were looking for feedback. We were upfront and honest. So we weren't deceptive and hiding anything".
A couple of points regarding that last paragraph.
1 - While Keith said that "in the context of the Paradigm provisions we filed accurate returns" this makes no sense. The Paradigm tax evaders did not file any income tax returns, in the context of the Paradigm provisions or otherwise. This is why they were charged and convicted of income tax evasion. Had they filed income tax returns and declared their incomes but refused to pay the applicable taxes because of their belief that Paradigm's interpretation of income tax law exempted them from tax they would have not been charged. The CRA would have gone after them for the taxes but they'd have done nothing criminal. The criminal act was hiding their income, not their claimed belief in the Paradigm system. So if they "weren't concealing or hiding", if they were "were honest and forthright" and they were sincerely "looking for feedback" why didn't they take the honest, forthright, upfront approach by filing their tax returns, declaring their income, and claim that it wasn't taxable? If they'd truly wanted feedback that would have been guaranteed to give them all they wanted.
2 - This is all totally irrelevant to this hearing. None of this has anything to do with his sentencing, the only issue under appeal today. Lawson's arguing that he's not guilty of income tax evasion because of a sincere belief. But a jury of his peers convicted him of income tax evasion and the Court of Appeal has confirmed the convictions.
Anyhow the court sat there with no response. Lawson stopped to "gather my thoughts for a moment" then started to discuss some case that Crown had cited that he didn't agree with. Then back to Carl Gustafson's testimony and how it somehow negated the trial court decision. I was way behind and lost track of what he was getting at.
Back on track "Judge should have taken into account that while we were wrong in law that we believed that we were right."
Court - Didn't the judge say that you advised people when you should have known that you were wrong?
Lawson - "Yes, but it took until
Stanchfield for me to know that I was wrong. I was in the proceeds of winding down. Just personal friends left. I guess that this was technically counseling."
Another note is in order. The
Kennedy decision, which decided against the "natural person" argument at the heart of the Paradigm system, came out in 2000, The
Sydel income tax evasion conviction, which specifically rejected the Paradigm system as tax evasion, came out in 2006. The
Stanchfield decision was released in 2009. Since all of Lawson's income came from his Paradigm counseling he had a vested interest in not believing that either
Kennedy or
Sydel were relevant. However by 2009, when he claims to finally have realized that Paradigm might be in error, everything had fallen apart. The CRA had seized all of Russell Porisky's records in September 2008 and were raiding Paradigm follower's homes and businesses under search warrants, By 2009 Paradigm followers were being charged with tax evasion and some had already been convicted. The whole Paradigm edifice had collapsed and Keith's Paradigm income, along with Paradigm itself, was shut down. So I'd agree with Keith that it was a probably a good time to reconsider whether Paradigm was entirely correct in all of its interpretations of income tax law.
Unfortunately for Keith the court, after the above comment about
Stanchfield, pointed out that the trial judge hadn't ignored any of this.
Court - In paragraph 59 of the reasons the judge recognized this. She wasn't ignoring submissions you were making. This court doesn't reverse findings. Court noted paragraph 62 of sentencing decision. The judge had all of Carl's evidence when she came to her conclusion.
These are the two paragraphs cited;
[59] The duration of his involvement was from 2001 when Mr. Lawson met Mr. Porisky to 2010. He says that he began to wind down his involvement in 2009 after the R. v. Stanchfield case (Vancouver 886-1 B.C. Prov. Ct.) was decided in January 2009.
[62] The fact that Mr. Lawson’s activities with Paradigm were not concealed does not render him less responsible. Further, the offence of counseling fraud involves the use of deceit. Mr. Lawson, I find, employed deceit in his teachings to his students as evidenced by the testimony of his former student, Mr. Gustafson.
Lawson said that the judge had reviewed it but he disagreed with the judge's conclusions regarding Carl's testimony. As I've noted before the judge's conclusions in respect to witness testimony become a finding of fact and the court had just said that it doesn't reverse findings.
Court - Wasn't there evidence going both ways?
Lawson - Potentially.
Court - Are you saying that you specifically deceived Carl rather than deceit in general? She considered deceit in general and even if you disagree with it is not this court's role to review the evidence.
Court (different judge) - The trial judge considered all of the evidence. This wouldn't be the first case where a victim of deceit didn't realize he was being deceived.
Lawson - I wasn't being deceptive in teaching Paradigm because I believed it was right.
Lawson then brought up what he called another minor issue, the DNA sample ordered in his case. "My lawyer opposed it". Something about how his lawyer hadn't done a very good job and didn't stop the DNA sample order. There were privacy and future impacts. They use information for what purpose? If he'd argued rather than lawyer he'd have argued privacy concern. If I'd had a better lawyer there would have been a different outcome because Millar (Michael Millar) didn't have one (DNA sample order).
Court - Are you saying that judge took matters into account she should not have? Yes, the factors were the same for him as Millar.
Court - DNA formed no part of your detention and conviction. Are you saying that mattered in giving order?
Lawson - "Yes. If the law is not respected it's an invasion of privacy for a white-collar crime with no violence. I'm on my way to wrapping up. I'm going through my notes." He said that the judge considered medical and family circumstances. Then he started talking about his urinary problems.
Court - You can't put in fresh evidence.
Lawson - "The doctor and friends gave letters regarding my good character. This was minimized." The judge had commented about how he'd be cared for in jail. It was a mistake to say this and say how he could be treated in jail.
This is the part of the sentencing decision he's referring to;
[112] Unlike in the cases cited regarding other offenders’ medical constraints, the excellent taxpayer-funded Canadian medical system can and will continue to assist you Mr. Lawson while you are incarcerated. I have taken into account your medical and childcare care circumstances.
Court - We see expert reports so I don't see why it was an error that you didn't have a medical opinion supporting your arguments. She did not have evidence supporting your arguments.
It was now 11:10, we were one hour in with no break and my hand was starting to give out.
Court - Anything else?
Lawson - Yes. Family letters. I don't know if this is an error. Family members and friends did not explicitly state charges he faced. I left it to people to write letters and it is not a reasonable finding that they didn't know.
Another explanation needed from Burnaby49. Keith is talking about a bunch of letters he had his family and friends write up and present to the court testifying to his good character and positive attributes. The judge gave them little or no weight in her decision . He's referring to this comment in his sentencing decision;
[48] Mr. Lawson filed letters of support. His family and friends think highly of him and his role as a father to his two sons. However, except for his wife and father, it is not apparent that any of his supporters are aware of the offences he has been convicted of.
Next he had issues with the judge using comments in the Crown's sentencing submission. "The court accepted and repeated a lot of the Crown's submission but the judge didn't refer to my lawyer's submission. The judge in Millar (Michael Millar's judgment) didn't do this. She didn't refer to my lawyer's submission. She ignored the caselaw I submitted." Then he was back to his litany of how he'd made an innocent interpretation even if he was wrong. A mistake of law can be considered a mitigating factor. That was it for Keith and he ended his submission at 11:15. We had a break and Lawson was escorted by the sheriff back to the lockup.
A comment in respect to the last paragraph. It is common practice for judges to include parts of the submission of either party into their decision. If the judge agrees with a party's arguments why reinvent the wheel? I see it often in tax decisions. The judge probably didn't refer to his lawyer's submissions because she didn't agree with them. As long as a judge reads and reviews all of the evidence presented she is not required to make reference to each individual piece of it.
Additionally a "mistake in law" isn't a mitigating factor. Firstly in Canada a claim that a defendant made a mistake in law cannot be argued in defense at trial. The criteria is whether the law was followed or not, not the claimed beliefs of the accused. So, if a mistake in law can't be used as a defense, how can it be a mitigating factor in sentencing? Secondly the only evidence that Keith made an "innocent interpretation" are his own self-serving comments. There has been no actual evidence submitted supporting this claim. What would serve as evidence? What about, as I said before, if the Poriskyites had actually filed income tax returns stating their income for the years in question but had declined to include payment for taxes on the basis that their "innocent interpretation" exempted them from tax? Had Keith filed that would be real evidence that he could have shown the court. However, as I also said, had he done this we wouldn't be here because he wouldn't have been charged with income tax evasion.
At 11:35 break over and the hearing resumed. The court told the Crown that it only needed to hear from them on two matters. But then Lawson cut in and said that he hadn't finished. He'd forgotten a few things. First paragraph 32 of his sentencing statement. "The judge considered things she shouldn't have considered." He compared his case to Millar's where he said that Michael Millar was treated more leniently. I didn't get examples but he seemed to think that his judge considered some issues to be aggravating circumstances that Millar's judge didn't. Then something about the length of time between conviction and sentencing.
Court told Crown yet again that it needed to only hear from Crown on two matters.
1 - Judge's comments in sentencing decision regarding medical care in correctional facilities.
2 - The issue of the DNA test.
The court said it didn't need to hear from the Crown on any other matter. I discussed the meaning of this comment from the court in my review of Lawson's conviction appeal. If the court doesn't need to hear from the Crown apart from these two issues it means that the court has already decided against all of Lawson's other grounds for appeal. So his arguments that the judge made errors because;
- The judge did not believe his claimed remorse
- He was given a custodial sentence because he didn't have his own phone
- The judge ignored his testimonial letters from family and friends
- The judge used the Crown's submissions in her sentencing decision but:
- The judge did not reference any of his sentencing submissions
- The Judge compared him to a stay at home mother if he got a conditional sentence
- The Judge ignored his statements that he'd acted honestly, upfront and forthrightly
- Michael Millar was treated more leniently than he was for the same offense
Are already all off the table.
The argument that Michael Millar was treated more leniently than Lawson is nonsense in any case. While Michael Millar was not ordered to provide a DNA sample he was given a much longer jail sentence. Millar received thirty months as opposed to Keith's eighteen months, a full year longer.
Now it was Crown's turn to step up at bat. They started with the medical issue. "When I go to the passage Lawson referred to it is unclear about details. It seems to be at a pre-trial facility not an actual institution. The judge made no error, not an error that would have impacted on sentence."
This refers to a comment by Lawson I may have missed earlier but I know what the reference related to because Lawson had said the same thing at his sentencing hearing. He'd made a comment to the effect that while he was in custody, he didn't say where, a nurse had said that they didn't have the facilities to treat his condition "here". As Crown noted in the previous paragraph Lawson did not stipulate where "here" was. Additionally there is no evidence, apart from Lawson's self-serving comment, that the conversation actually took place.
Court to Crown - Is it your view that if the defendant tried to get conditional because of medical it is for the defendant to prove, or is it the Crown? (Note - to prove that the facility Lawson would serve his sentence in has adequate medical care for his specific condition).
Crown - The nature of the information is the responsibility of the accused. It is not in the knowledge of the Crown.
Court - Accused may not be knowledgeable about the medical at the facility.
Crown - I'm not saying that. I'm saying that it is necessary for the accused to prove his medical condition.
Court - Didn't Lawson do that?
Crown - It's hard to conceive that a person with Lawson's condition that it can't be accommodated.
Court - It's minimizing his condition to call it a simple urinary infection. It's much more complicated than that. I assume you want us to take it as judicial notice that the institution can handle him?
Crown - Yes
This is judicial notice;
A doctrine which enables a judge to accept a fact without the need of a party to prove it through evidence.
Court - Another judge said that it was clear in the context of Lawson's comment that the nurse who told him that they couldn't deal with his condition "here" related to his pre-trial detention, not jail.
On to DNA issue. This is, in the scheme of things, trivial. Lawson hasn't specified what redress he wants from this court in respect to the DNA issue (at least that I've noticed) but what he really wants, desperately, is to avoid going to jail. Since his convictions were upheld on appeal he can't avoid a sentence to serve time of some kind so he's trying to get his custodial sentence, currently to be served in jail, downgraded to a conditional sentence which he could serve at home. No matter how the DNA issue goes it's not going to help him with that goal. At most, if he wins on the DNA, the court will order the sample he gave and all records pertaining to it destroyed.
The issue being debated now and a bit later is general and specific deterrence. Specific deterrence is the theory that taking the sample will deter Lawson specifically from committing more crimes. However DNA is only useful for identifying suspects in physical crimes. As Lawson had said he committed a white collar crime where DNA is irrelevant. If he committed another white collar crime his DNA sample would be useless in either apprehending or convicting him. If, in the future, he committed a crime of violence then the sample might be of assistance but both the Crown and the court considered that possibility to be extremely unlikely. So the Crown conceded that specific deterrence was not an issue and that they thought that the DNA order should stand because of general deterence. General deterrence is deterring other potential criminals from committing crimes similar to Lawson's knowing that, if caught, they may also be subject to giving DNA samples.
A judge said that he couldn't see how deterrence was served by a DNA order. Crown waffled. "Parliament established this offense as fitting a DNA order"
Court - Deterring Lawson from what? Shoplifting?
Crown - Not specific deterrence, more punitive. A message to other offenders of this type of conduct. It may not be a huge issue but may have some aspect of deterrence.
The court still seemed skeptical about how DNA was relevant to Lawson's sentence. A judge said that it is not clear-cut that it is something that should be generally ordered.
Crown - "True. Privacy is at the core of the Paradigm's legal teachings. Privacy is the cornerstone of the Paradigm defense. The violation of privacy a DNA sample entails affects this directly. I'd note the word deterrence in the decision."
Then the court brought up Debbie Anderson;
http://www.quatloos.com/Q-Forum/viewtop ... 50&t=10747
Court - You were going to take us to the Anderson case (regarding an earlier comment by Crown that the Anderson decision, which included a required DNA sample, was post-Millar).
Crown - It is post-Millar. Justice Brown addressed the Millar decision and the circumstances no longer applied. Anderson was also a Paradigm educator.
Lawson was now given the opportunity to reply. "I don't know how judicial notice works"
Court - Just go ahead.
Lawson - If I go to jail it will be provincial and somebody told me that medical care is not so good as in federal jails. Federal jails are a better place to "get stuck". Provincial jails are not well funded. I considered asking for longer than two years to go federal. He broke down and started crying, the same as he'd done in his sentencing hearing. He said it wasn't good for his family to have him in jail longer. He wants to get back to his wife and kids. I had difficulty following because his crying was making him incomprehensible from my position. He pulled himself together and said something about Debbie Anderson. "We don't know what the Anderson, Lawson, Millar judges thought". (That sentence doesn't make much sense but it's what's in my notes.) Then a shift to DNA. He wanted the court to consider the increase in police powers. He agreed that sexual assault was a valid reason for a DNA order but not him. He was done and court stood down for a few minutes but not a recess so we could remain in the courtroom.
Court resumed. Judgment was reserved. Judge said that he took it that there would be a bail application agreed by consent. Crown - Yes, we agree to bail being extended on the same terms until the date of the judgment of the court. So the court allowed Keith extended bail and adjourned. Before adjourning a judge told Lawson he should work on perfecting his application but he advised Lawson it probably wouldn't help him. I'm assuming the judge was referring to the application to this court to stay proceedings until such time as Lawson got around to finishing and submitting his leave to appeal to the Supreme Court of Canada and the Supreme Court responded.
However keep in mind while Keith talked about filing leave to appeal with the SCC he hasn't yet done so. This is what Crown meant when it said he hadn't "perfected" his appeal. Neither 679(1) of the Criminal Code nor 65.1 of the Supreme Court Act are applicable to Keith until such time, if ever, that he gets his leave to appeal filed. So, as the judge told him at the end of this hearing, he can file an application to have charges stayed if he wants but he's not going to get it granted.
Additionally, as the court said earlier, while they can stay a sentence imposed by this court they can't stay the orders of another court. Since Keith was sentenced by the Supreme Court of British Columbia the Court of Appeal does not have jurisdiction to grant a stay of proceedings. So if the custodial part of Keith's sentence is confirmed at the next hearing he'll be immediately incarcerated.
As far as I can see the only issue that would cause the Court of Appeal to allow a change from a custodial sentence to a conditional sentence is the concern that the British Columbia penal system cannot provide Keith with necessary medical care. The problem I see for Keith with that is that he's provided absolutely no evidence to support his claim of inadequate care. All that he's entered into evidence that I've seen is his verbal statement that a nurse somewhere said that he couldn't be properly cared for wherever it was that the nurse was located, and a second verbal statement from an unidentified "someone" saying that medical care in the provincial penal system wasn't as good as care in the federal system. Pretty thin stuff to convince the Court of Appeal to override the sentencing decision of the Supreme Court of British Columbia, particularly when one of the appeal judges had said earlier in this hearing, regarding the trial judge's imposition of a custodial sentence notwithstanding Keith's claim of inadequate medical care, "She did not have evidence supporting your arguments."
because they don't exist. That is basically what an appeal is all about, and that he doesn't seem to be able to get to.
