The Court of Appeal of British Columbia has released it's decision on Keith Lawson's appeal of his sentences for his convictions on income tax evasion and counselling fraud charges. Keith lost. Badly. He'd surrendered to the court sheriffs prior to the decision being released last Wednesday morning and he's presently serving his 18 month jail sentence.
First a bit of a review. Keith was convicted of income tax evasion and counselling fraud. The counselling charge related to Keith selling his services to fellow tax evaders showing them how, under the Paradigm Education Group's system of tax evasion manoeuvres, they could screw the tax man. The income tax evasion charges related to his not reporting the income he made by counselling income tax evasion. Keith was convicted and given an eighteen month jail sentence. He appealed the convictions using, as the basis for his appeal, arguments which were no more than idiotic gibberish. His stunningly inept performance at his conviction appeal hearing was reported earlier in this thread. Having lost that he appealed his sentence. That hearing is also reviewed here. His main argument at the sentencing appeal hearing was that he should not be given a custodial sentence (tossed in jail) because he could not get proper care for his health issues in prison. He does have significant medical problems so this was at least a valid arguable issue.
His second sentencing issue at appeal was the mandatory DNA test ordered by the trial judge. He felt this to be an unwarranted invasion of privacy and not justified on the basis of deterrence. As I wrote;
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.
My impression, after attending his sentencing appeal hearing, was that he seemed to have a significant chance of winning on the DNA issue, the judges seemed sympathetic, and that he had at least a fighting chance of getting his custodial sentence reduced or changed to a conditional (served at home) sentence. But what do I know? I was wrong on both counts. So on to the decision.
R. v. Lawson
2019 BCCA 290
http://canlii.ca/t/j27rc
First the decision did a review of the basis of Keith's original sentences;
[11] The judge made a number of key findings, including the fact that Mr. Lawson’s offences were planned, deliberate and profit-driven. She also found that he had actual knowledge of the illegality of the scheme he taught and followed personally to evade taxes.
[12] The judge considered the appellant’s health problems and child care situation, noting that both were relevant in sentencing: R. v. Vo, 2009 BCCA 471 (CanLII), and R. v. Bi, 2011 BCCA 204 (CanLII). She assigned minimal weight to Mr. Lawson’s expression of remorse, finding that he had a mindset of defiance towards the Canada Revenue Agency and the court throughout the proceedings. She also rejected his submission that the offences lacked concealment and did not involve deceit. With respect to deceit, she noted that Mr. Lawson was convicted of counseling fraud, an offence whose elements include the use of “deceit, falsehood or other fraudulent means”. She found that Mr. Lawson himself acted deceitfully in respect to his own tax affairs.
[13] The reasons for sentence indicate that the judge appreciated that she was bound to consider the options of both a custodial and a conditional sentence, given that conditional sentences can satisfy the sentencing principles of denunciation and deterrence. She then considered whether a conditional sentence would be appropriate in Mr. Lawson’s case, in light of the circumstances of the offences and the offender. After a comprehensive analysis, the judge held that a conditional sentence was not appropriate because it would not adequately address the sentencing principles of denunciation and general deterrence. In doing so, she noted that in other cases involving Paradigm educators, conditional sentences had not been imposed in the absence of both a guilty plea and a joint submission by the Crown and the defence on the appropriate sentence.
Then they considered Lawson's rebuttal;
[15] In his written statement, the appellant raises numerous grounds of appeal, including:
(a) the judge made various errors in her findings of aggravating factors on sentence, including that his acts were planned and deliberate, he was recalcitrant in his views, and that his actions had a negative effect on the community;
(b) the judge made various errors in failing to properly consider mitigating factors, such as his health and the fact that he had properly expressed remorse;
(c) the judge erred in finding that a conditional sentence would essentially leave him in the same position as he was previously—that is, a stay-at-home father; and
(d) the judge erred in finding that a DNA order would be in the best interests of the administration of justice, for which proposition the appellant relies on a decision of the Supreme Court of British Columbia rendered after the decision in this case, being R. v. Millar, 2017 BCSC 402 (CanLII) (“Millar”).
After presenting the positions the court did an analysis. First up was Keith's argument that his health was too precarious for him to be incarcerated;
[17] We are of the opinion that the sentencing reasons were thorough and that the judge correctly instructed herself on the relevant sentencing provisions of the Criminal Code. In sentencing the appellant, she was bound by the express and implied implications of the jury’s verdict.
[18] We are also of the view that in determining whether the sentence was fit and the DNA order appropriate, the judge was faced with only two issues that required analysis.
[19] The first relates to the appellant’s serious health issues and the question of whether they were properly considered by the judge in reaching her conclusion that a conditional sentence was not appropriate in this case.
I'd written, in my review of his sentencing hearing;
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."
The court seemed to agree with this position;
[22] It is evident that the appellant has a significant health issue. But absent those factors where conditional sentences have been imposed in like cases, we are not of the view that Mr. Lawson’s health concerns amounted to an overriding consideration which would warrant a conditional sentence and that the judge made a reviewable error in concluding otherwise. We note that the circumstances detailed by the appellant, to which we refer above, were in the context of a temporary holding facility in which he was in custody pending his bail hearing. The appellant will serve his sentence in a Provincial Institution and we are prepared to take judicial notice of the fact that healthcare professionals are available in such institutions to monitor, treat and refer inmates if necessary. It is also the case that administrative review avenues are available to inmates in the event that they are concerned with the level of treatment that they are receiving.
Note the sentence regarding judicial notice that I've put in bold. This reverts back to the hearing where I noted;
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.
My reading of the decision is that Keith failed to provide the Court of Appeal with sufficient evidence to support his argument that the provincial jail system could not provide him with adequate medical care. In the absence of any proof of his claim the court took judicial notice of the Crown's argument that the available care was satisfactory for Keith's medical issues without requiring the Crown to somehow prove this.
Then on to the mandatory DNA sample. This seemed to be a secondary issue, Lawson's real overriding goal was to stay out of jail. I thought that the Crown, while arguing at the sentencing appeal hearing in favour of a sample being required, really didn't put their hearts into it. The Crown's main concern was probably keeping Lawson's custodial sentence intact and I doubt that they cared all that much about the DNA issue. Regardless, they won this one too. Lawson had argued that a sample would not help the Crown in the persecution of possible future offences because he'd been convicted of white collar crimes where a DNA sample was irrelevant. The Court of Appeal said that there were other legitimate uses for a sample apart from this;
[26] While a DNA order is one which is “ancillary” in nature, it is clear, in our view, that its purpose goes further than being purely an investigatory tool to prevent future offences.
The court cited its own decision in this prior case,
R. v. Awasis
2009 BCCA 134
http://canlii.ca/t/22xlh
[48] In considering “the nature of the offence”, the judge held that its investigation was unlikely to benefit from DNA evidence (para. 28). It was a theme of his reasons that ordinarily DNA evidence is of little utility in investigating street-level drug trafficking. He recognized that whether there was evidence at the scene of the crime that would yield a DNA profile was not necessarily relevant. He observed that he had never seen DNA evidence used in cases of trafficking cocaine.
[49] However, the reasons for judgment appear to express doubt as to whether it would ever be in the best interests of the administration of justice to order DNA sampling with respect to offences of this nature, unless there were other reasons to make such an order.
[50] With respect, in the absence of a constitutional challenge, the learned sentencing judge was bound to accept Parliament’s determination that an order authorizing the forensic analysis of the DNA of a person convicted of offences contrary to s. 5 of the CDSA is capable of furthering the purposes of the DNA data bank in advancing related state interests. In R. v. Hendry et al the Ontario Court of Appeal put it this way: “…the fact that the offence of which the accused was convicted is not ordinarily one where DNA evidence might be found is not necessarily relevant. The legislation has already struck a balance by limiting the reach of the DNA data bank orders to persons convicted of serious offenses, being those designated as primary or secondary offenses” (para. 23).
[51] Parliament has seen fit to include possession for the purpose of trafficking as a designated offence. So far as the nature of the offence is concerned, nothing in the judge’s reasons appears to acknowledge that fact.
[52] In addition, as explained above, the purposes of the DNA legislation are broader than simply identifying the offender should she reoffend. In R. v. Jordan 2002 NSCA 11 (CanLII), Cromwell J.A. (as he then was) said (at para. 70):
… The fact that DNA identification was not, or is not, likely to be useful with respect to the offender, may tend to show that obtaining the samples will not further the legislation’s identification purpose. However, such evidence does not negate the testing of the offender in relation to the legislation's other purposes. …
The appeal court then considered Lawson's claim that his right to privacy trumped the trial court's right to order a DNA sample;
[39] In the present case, the trial judge made the DNA order without addressing Mr. Lawson’s particular concern for informational privacy. However, before privacy interests can outweigh the state’s interest in the making of such an order, there must be something in the circumstances of the case that take it out of the ordinary. This Court in Ku at para. 45 agreed with the following reasoning of the Ontario Court of Appeal in R. v. Hendry (2001), 2001 CanLII 21168 (ON CA), 161 C.C.C. (3d) 275 (Ont. C.A.):
[18] … In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.
[40] In our view, Mr. Lawson’s particular preference for keeping the state at arm’s length does not take his case out of the ordinary. As was stated in para. 25 of Hendry, it will be in the best interests of the administration of justice in the vast majority of cases to make a DNA order:
[25] On balance, I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s. 487.051(1)(b) and s. 487.052, as the case may be. This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations.
[41] Accordingly, while Mr. Lawson’s aversion to the loss of his informational privacy interests cannot be used to justify the making of a DNA order, the real question on appeal with respect to this issue in this case is whether the judge committed a reviewable error in exercising her discretion in making the order in question. We are of the view she did not and would in fact go further and find that her decision on this issue was correct.
Resulting in;
[42] Accordingly, we would dismiss the appeal.
And about time. I started my Quatloos reporting on Lawson's ongoing trial process in March 2012, almost seven and a half years ago. I didn't envisage that it would take me the better part of a decade to finally see the end of it. Lawson was making claims at his last appeal hearing (see below) about appealing to the Supreme Court of Canada but I can't see him making an appeal that the Supreme Court will bother to review. Throughout this seven year epic Lawson has shown a disdain for court rules and procedures, constantly making late filings, gibberish filings, ambush filings the day of a hearing, court rules and procedures seemed irrelevant to him. Both the Supreme Court of British Columbia and the Crown showed great tolerance in letting him flout rules and procedures but if he finally makes an application for leave to appeal to the Supreme Court of Canada he's going to find that he won't get the same indulgence there. If it's not done correctly it won't even get a glance. So he's done. He'll serve his term and disappear into obscurity. Not that, apart from my Quatloos reporting, he ever left it.
So, after years of following the Paradigm tax evader trials I'm down to Michael Millar, the last man standing. Millar has been defending himself with pseudo-legal lunacy that make Lawson's arguments seem almost sane. Millar has no understanding of real law and is, instead, a true believer in numerous bizarre legal theories that are more akin to religious beliefs than anything connecting to any actual laws. This is all reported in detail in his thread.
http://www.quatloos.com/Q-Forum/viewtop ... 50&t=10834
Millar, like Lawson, was a Paradigm educator convicted of tax evasion and counseling fraud. Again, like Lawson, he was sentenced to jail time, appealed his convictions, and lost. His last chance of escaping jail is his sentencing appeal which is scheduled for early November. If he loses that he will, like Lawson, be immediately incarcerated to serve out his sentence notwithstanding the rage-filled rant he made at his March 1, 2017 hearing;
I DON'T VOLUNTEER TO GO TO JAIL AND I WON'T GO TO JAIL! I WANT MY BOND BROUGHT FORWARD FOR SETTLEMENT!
http://www.quatloos.com/Q-Forum/viewtop ... 40#p241655
Sentencing is, to a large extent, based on a review of aggravating and mitigating circumstances. Aggravating circumstances are those that favour a greater sentence, things like lack of remorse and the economic impact of crime on victims or Crown. As we've seem Keith Lawson's total lack of remorse for his crimes weighed against him at sentencing. Mitigating circumstances are those that would favour a lower sentence. Lawson was found to have two mitigating circumstances, his serious medical issues and his responsibility to take care of his three children while his wife went out to work to support the family. However the judge at Millar's sentencing hearing concluded that there were no mitigating circumstances in his favour. Absolutely none. The dismissal of Lawson's appeal of his sentences is a bleak forewarning to Millar of what he can anticipate from his own sentencing appeal because, at least as far as I'm aware, he has absolutely nothing of merit to argue that would give the Court of Appeal any reason to modify his 30 month jail sentence. He's not going into his sentencing appeal hearing with any mitigating circumstances to bolster his case and, given his bizarre confrontational performance in front of the Court of Appeal at his conviction appeal hearing, I can't see the court cutting him any slack.
Even if he finds an arguable point my vast experience of sitting in court watching him ranting complete gibberish day after day leads me to conclude that he's totally incapable of arguing it. The only viable issue at his conviction appeal hearing was delay. It was an entirely valid argument, the Court of Appeal actually told him so at the beginning of his hearing. Yet he chose to almost entirely ignore delay and instead squandered his time pursuing his overwhelming obsessions about capitalization and jurisdiction, arguments the court had told him would fail. I can't see things being any different at his sentencing appeal. He'll again waste his allotted time arguing capitalization, private capacity, natural man and jurisdiction, issues totally irrelevant to his sentencing. He's so obsessed by these idiotic daydreams that he'll continue arguing them to his dying day. He seems completely incapable of doing otherwise.
It's my conclusion that if Lawson couldn't win any modification of his sentence although he had significant mitigating circumstances then Millar's chances, with absolutely nothing on the plus side of the ledger, are hopeless. If judgment is given at the hearing he, like Lawson, will be immediately incarcerated to serve out his sentence. If the decision is reserved he'll get a few more months of freedom but he's spent years arguing himself into the position where jail now seems inevitable and imminent.
There's one final issue to consider for both Millar and Lawson. They're both relentless litigators and I doubt that either will stop until they've totally exhausted all of their appeal options. They both have one shot left, the previously mentioned issue of seeking leave to appeal to the Supreme Court of Canada. Much of Lawson's sentencing appeal hearing was spent considering his claim that he was going to appeal something or other to the Supreme Court. However while he claimed that he planned to make an appeal he hadn't quite yet gotten around to doing it. As the Crown said "His appeal has not been perfected". At the sentencing appeal hearing he seemed to believe that if he made an appeal to the Supreme Court, or if he even stated an intention to eventually, someday, file a leave to appeal to the Supreme Court, his current trial would be adjourned until such time as the Supreme Court appeal process was finally concluded. Events have shown him otherwise. He can still make an appeal but he'll be serving out his sentence while he does it. Millar will be in the same position. He can bundle up his masses of incomprehensible nonsense and send it all off to the Supreme Court but that won't in any way delay the inevitable. As for their chances, the Supreme Court of Canada has never granted leave to appeal for any appeal request based on sovereign or Freeman pseudo-legal theories and they're certainly not going to make an exception for either Millar or Lawson.
