IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Lindsay,

 

2010 BCSC 831

Date: 20100617


Docket: 59021

Registry: Kelowna

Regina

Respondent

v.

David Kevin Lindsay (David-Kevin: Lindsay)

Appellant

Before: The Honourable Mr. Justice Verhoeven

Corrected Judgment: The text of the judgment was corrected at paragraphs 18 and 76 on June 25, 2010

On appeal from the Provincial Court of B.C. Decision dated June 25, 2008,

(R. v. Lindsay, 2008 BCPC 203, Docket No. 59021)

Reasons for Judgment

Counsel for the Appellant:

In person

Counsel for the Respondent:

C. Burnett

Place and Date of Hearing:

Kelowna, B.C.
February 24, 25, March 30, 2010

Place and Date of Judgment:

Kelowna, B.C.
June 17, 2010


Introduction

[1]           The appellant, who I shall refer to as Mr. Lindsay, was charged with failing to provide income tax returns, upon notices requiring him to do so being served upon him pursuant to s. 231.2 (1)(a) of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) as amended (the “Act”), thereby committing an offence pursuant to s. 238(1) of the Act. After eight days of trial in the Provincial Court of British Columbia, he was convicted of five such offences, one for each taxation year 1997 through 2001.

[2]           He was sentenced to 30 days imprisonment for each offence, to be served consecutively, less credit for time served. He was also sentenced to pay the statutory minimum fine of $1,000 for each offence, and ordered to comply with the notices that he was served with.

[3]           He appeals to this Court against both the convictions and the sentence imposed.

[4]           Mr. Lindsay’s primary contention is that he is not a “person” within the meaning of the Act. Accordingly, he argues, he is not subject to the Act, he is not liable to pay income tax, and he is not obliged to comply with the notices to file tax returns.

[5]           In his affidavits and submissions he typically refers to himself as “David-Kevin: Lindsay, a full liability free will flesh and blood living man” or a similar description. He presents very elaborate, lengthy, intricate arguments that the word “person” as used in the Act has a special meaning, that he is entitled to remove himself from that definition, and that he has done so. He contends that in 1996 he ceased to be a “person” within the meaning of the Act. He admits that he has not filed a tax return since that time.

[6]           He says that in 2002 he served the Minister of National Revenue with a notice in the name of David-Kevin: Lindsay which denies that he is a “person” subject to the Act.

[7]           In all of the many documents Mr. Lindsay has filed with the court he has used the name “David-Kevin: Lindsay”. During the course of the argument in this Court Mr. Lindsay advised me that he adopted the unusual punctuation of his name in order to distinguish himself from a “person” within the meaning of the Act. He maintains that anyone has the right to render oneself a non “person” for purposes of the statute, and thereby render oneself not subject to the Act.

Judicial proceedings

[8]           The formal Information setting out the charges against Mr. Lindsay describes the accused as “David Kevin Lindsay (David-Kevin: Lindsay)”.

[9]           The Information is dated November 26, 2003. In connection with the Information, a summons was issued. The summons Mr. Lindsay has placed before me on this appeal is dated November 28, 2003 and commands that one “David Kevin Lindsay” attend at the Provincial Court at Kelowna on January 8, 2004. There were difficulties procuring Mr. Lindsay’s attendance at court. Mr. Lindsay argued that his initial attendance at court on March 2, 2004 was procured improperly and that the Provincial Court lacked jurisdiction over him for that reason. He failed to appear in court as directed by the court on March 17, 2004, and a warrant for his arrest was issued. He was arrested and held in custody for a time, then released on bail. He remains on bail currently.

[10]        Mr. Lindsay was arraigned on May 10, 2004 at a hearing before Judge Stansfield. Upon Mr. Lindsay’s refusal to enter a plea known to the law, Judge Stansfield directed that a not guilty plea be entered.

[11]        Mr. Lindsay brought proceedings for judicial review to this Court seeking orders in the nature of prohibition and certiorari in connection with the manner in which his attendance at Provincial Court was procured. His application was heard by Mr. Justice Barrow, who denied the application. Justice Barrow delivered reasons for judgment dated February 8, 2005: R. v. Lindsay, 2005 BCSC 484. The decision of Barrow J. was affirmed by the Court of Appeal: R. v. David Lindsay (David-Kevin: Lindsay), 2006 BCCA 150.

[12]        The trial in the Provincial Court commenced February 14, 2005 before the Honourable Judge Sinclair. There were several lengthy adjournments during the course of the trial, which concluded after a total of eight hearing days, on March 28, 2008. Judge Sinclair delivered reasons for judgment convicting Mr. Lindsay of the charges on June 25, 2008. Judge Sinclair delivered reasons for the sentence on November 24, 2008.

[13]        During the course of the Provincial Court proceedings, Judge Sinclair delivered several interim rulings. The rulings which Mr. Lindsay has placed in the book of transcripts that he prepared for this appeal include the following such rulings, which I therefore take to be in issue on this appeal, as forming a part of the final decision of the court:

1.    February 14, 2005: ruling on jurisdiction of the court, and allegations of bias against Judge Sinclair;

2.    October 14, 2005: ruling refusing application to cross-examine Judge Sinclair with respect to his understanding of his oath of office, and regarding the coronation oath taken by Her Majesty Queen Elizabeth II on June 2, 1953.

3.    October 25, 2005: elaboration upon the ruling of October 14, 2005.

[14]        Upon my review of the transcripts I noted references to other rulings, notably several rulings made by Judge Sinclair on February 14, 2005, the first day of the trial. These other rulings were not provided to me for this appeal, and I therefore infer that they are not in issue.

[15]        Mr. Lindsay also brought proceedings to this Court for judicial review of Judge Sinclair’s ruling of October 14, 2005, seeking to have the ruling quashed through an order of certiorari. The application was denied by Justice Barrow: R. v. Lindsay, 2006 BCSC 188. The decision was affirmed by the Court of Appeal: R. v. Lindsay, 2007 BCCA 214.

[16]        There were apparently other applications brought to this Court during the course of the trial. The transcript of September 9, 2005 refers to an unsuccessful application for prohibition which had been recently dismissed by Mr. Justice Groves. Other applications arising out of this prosecution are mentioned in the decision of the Court of Appeal in Attorney General of B.C. v. Lindsay, 2007 BCCA 165 at paras. 5-7.

Statutory context of the appeal: Criminal Code

[17]        Mr. Lindsay was convicted of summary conviction offences.

[18]        The legal principles applicable to an appeal of summary conviction offences were discussed by Romilly J. in HMTQ v. Pomeroy, 2007 BCSC 142 at paras. 25-41, as follows:

(A)       Summary Conviction Appeals

[25]      The right to appeal from a summary conviction matter is governed by Part XXVII of the Criminal Code, R.S. 1985, c. C-46. Section 822(1) of the Criminal Code provides that in a summary conviction appeal pursuant to s. 813, ss. 683 to 689 relating to appeals of indictable offences, except s. 683(3) and s. 686(5), apply. Section 686(1) states:

686(1)  On the hearing of an appeal against conviction... the court of appeal

(a)        may allow the appeal where it is of the opinion that

(i)         the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii)        the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or,

(iii)       on any ground there was a miscarriage of justice;

[26]      The function of the summary conviction judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt: R. v. W.(R.), [1992] 2 S.C.R. 122; R. v. Grosse (1996), 29 O.R. (3d) 785 (Ont. C.A.).

[27]      In R. v. Hay (1990), 25 M.V.R. (2d) 121 (B.C.C.A.), Toy J.A., stated at 127-8, quoting Estey J. in R. v. Harper, [1982] 1 S.C.R. 2 at 14:

An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues...

The duty of the summary conviction appeal court judge is to examine not only the trial Judge's reasons but also all of the evidence to determine whether the trial Judge's findings and ultimate conclusion are unreasonable or can those reasons be supported on the facts as by the trial judge?

[28]      In R. v. Sall (1990), 81 Nfld. & P.E.I.R. 10, 54 C.C.C. (3d) 48 (Nfld. C.A.) Goodridge C.J.N. drew a distinction between the functions of an appeal court judge with respect to primary facts and inferential facts. He stated at 54:

It was not open to the appeal judge to make a reassessment of the evidence and substitute his own findings of primary facts (as distinguished from inferential facts) for those of the trial judge. Once it appeared that there was evidence to support the expressed conclusion of the trial judge, the appeal judge was powerless to interfere.

[29]      In R. v. Nickerson (1999), 178 N.S.R. (2d) 189 (N.S.C.A.) Cromwell J.A. noted at [para.]6:

Absent an error of law or a miscarriage of justice, the test to be applied by the Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence.

As stated by the Supreme Court of Canada in R. v. Burns, [1994] 1 S.C.R. 656, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusions. If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, a summary conviction appeal on the record is an appeal, it is neither a simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on the transcript.

(B)       Unreasonable Verdict

[30]      The test to determine whether the verdict was unreasonable and unsupportable by the evidence was set out in R. v. Corbett, [1975] 2 S.C.R. 275, (1973)14 C.C.C. (2d) 385 at 389 and R. v. Yebes [1987] 2 S.C.R. 168. The test was described as follows in Yebes at 430:

The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence.

[31]      In R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.), in discussing s. 686(1)(a)(i) Doherty J.A., stated at 220:

In considering the reasonableness of the verdict pursuant to s. 686(1)(a)(i), this court must conduct its own, albeit limited, review of the evidence adduced at trial: R. v. Burns, supra, at pp. 198-9. This courts authority to declare a conviction unreasonable or unsupported by the evidence does not depend upon the demonstration of any errors in the proceedings below. The verdict is the error where s. 686(1)(a)(i) is properly invoked. A misapprehension of the evidence does not render a verdict unreasonable. Nor is a finding that the judge misapprehended the evidence a condition precedent to finding that a verdict is unreasonable.

[32]      An appellate court must use the following test in reviewing a verdict for reasonableness: R. v. Biniaris, 2000 SCC 15, 1 S.C.R. 381 at [para.]36:

Could a properly instructed jury, acting judicially, have reasonably rendered the verdict?

[33]      "Acting judicially" means, in addition to acting dispassionately, applying the law, and adjudicating on the basis of the record alone, reaching a conclusion that does not conflict with the bulk of judicial experience. The appeal court is to look through the lens of judicial experience, importing its knowledge of the law and the expertise of the courts gained through the judicial process over the years, not simply his or her own personal experience and insight.

[34]      The test requires the appeal court, within the limits of appellate disadvantage, to examine the weight of the evidence, rather than its bare sufficiency. However, it is insufficient for the Court of Appeal to refer to a vague unease, or a lingering doubt or a lurking doubt, based on its own review of the evidence. These feelings may trigger a thorough appellate scrutiny of the evidence. However, without further articulation of the basis for such doubt or unease, these feelings will not justify interfering with the findings of facts at trial: Biniaris at [paras.]36, 38.

[35]      When the Court of Appeal overturns a verdict for unreasonableness, it must articulate as precisely as possible what features of the case make the verdict unreasonable. For instance, the Court of Appeal will be justified to intervene when the trial judge was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached, or entered a verdict in conflict with the bulk of judicial experience: Biniaris at [paras.]37, 40, 41.

[36]      Again, simply concluding that on the whole of the evidence the conviction is unsafe will not form a proper basis for reversal. When a judge gives detailed reasons for judgment, as in the case at bar, and when the reasons reveal that he or she was alive to the recurrent problems of this field of adjudication, the Court of Appeal brings no special insight to the assessment of the evidence: Biniaris [para.]37; R. v. G.(A), 2000 SCC 17, 1 S.C.R. 439 at [para.]29.

[37]      An appellate court can find a verdict reasonable even though the Crown's case is not overwhelming. R. v. Lewis, [2003] O.J. No. 4037 (Ont. C.A.) (QL) at [para.]6.

[38]      In Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191, Wilson J. stated at [para.]26:

[A]ppellate courts should only interfere where the trial judge has made a "palpable and overriding error which affected his assessment of the facts". The very structure of our judicial system requires this deference to the trier of fact. Substantial resources are allocated to the process of adducing evidence at first instance and we entrust the crucial task of sorting through and weighing that evidence to the person best placed to accomplish it. As this court and the House of Lords have repeatedly emphasized, it is the trial judge who is in the best position to assess the credibility of testimony. An appellate court should not depart from the trial judges conclusions concerning the evidence "merely on the result of their own comparisons and criticisms of the witnesses".

(C)       A trial judge is presumed to know the law

[39]      A judge is presumed to know and properly apply the law, and to have taken into account all aspects of all relevant evidence. Hence, as a general proposition, succinct analysis or silence on a particular issue is not an error in law. Where a comment is open to more than one interpretation, the interpretation consistent with the judge’s presumed knowledge of the law prevails. That presumption can only be displaced if an error in law is manifest in the judge’s comments: R v. Burns, [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193 at 199-200; R. v. Wigman (1997), 96 B.C.A.C. 161 at [para.]7; R. v. Manj, [1995] B.C.J. No. 1059 (B.C.C.A.)(QL) at [para.]33, 37, 40, leave to appeal to SCC dismissed, [1995] S.C.C.A. No. 373.

[40]      In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the comments of Iacobucci and Major JJ. at [para.]22 and [para.]24 are apposite to some of the issues raised on this appeal:

[T]rial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift though the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.

[A]lthough the same high standard of deference applies to the entire range of factual determinations made by the trial judge, where a factual finding is grounded in an assessment of credibility of a witness, the overwhelming advantage of the trial judge in this area must be acknowledged.

[41]      Needless to say that in dealing with this appeal I have instructed myself on all of the law enunciated above.

[19]        I too have instructed myself in accordance with the above noted principles in deciding this appeal.

[20]        Mr. Lindsay also appeals against the sentence imposed upon him.

[21]        Section 687 of the Criminal Code governs the court’s powers on an appeal against sentence. It is as follows:

Powers of court on appeal against sentence

687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal.

[22]        The decision of the sentencing judge is entitled to considerable deference; it should not be interfered with lightly. Parliament has explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code and accordingly, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. M.(C.A.), [1996] 1 S.C.R. 500 at paras. 90-92. In relation to alleged disparity of the sentence against sentences imposed upon similar offenders and similar offences, the court of appeal should only intervene where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes: M.(C.A.), at para. 92.

Issues

[23]        Mr. Lindsay’s written statement of argument filed with this Court is 242 pages in length. He also filed with this Court and relied at the hearing of the appeal upon the written argument he prepared for his trial in the Provincial Court, consisting of a further 255 pages. Mr. Lindsay also provided me with in excess of 150 authorities to consider. Although I reminded Mr. Lindsay that the proceedings in this Court consisted of an appeal, not a hearing de novo, much of Mr. Lindsay’s argument on the appeal appeared largely to be a repetition of the arguments that he made at the Provincial Court.

[24]        Mr. Lindsay raises many issues. Many of the issues he raises are repetitive, and are variations on a few themes.

[25]        In the context of ss. 686 (1) and 687 of the Code, the overall issues on this appeal are as follows:

1.         Is the verdict unreasonable or unsupportable on the evidence?

2.         Should the judgment be set aside on the ground of a wrong decision on a question of law?

3.         Was there a miscarriage of justice, on any ground?

4.         Was the sentence imposed fit; if not, how should it be varied?

Analysis

First issue: Is the verdict unreasonable or unsupportable on the evidence?

[26]        In order to find Mr. Lindsay guilty of the offence, it was necessary for the court to conclude that the accused, Mr. Lindsay, the person who was in court on the charges, was the person who had been served with the notices to file the tax returns, and that he had not done so.

[27]        Before dealing with the evidence in that respect, I will deal with Mr. Lindsay’s principal argument, which is in substance that it is impossible for the Minister to serve him with an effective notice to file a tax return as Mr. Lindsay is not a “person” within the meaning of the statute.

[28]        The applicable sections of the Act pursuant to which Mr. Lindsay was charged and convicted are as follows:

231.2 (1) Notwithstanding any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act (including the collection of any amount payable under this Act by any person), of a comprehensive tax information exchange agreement between Canada and another country or jurisdiction that is in force and has effect or, for greater certainty, of a tax treaty with another country, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as stipulated in the notice,

(a) any information or additional information, including a return of income or a supplementary return; or

(b) any document.

...

238. (1) Every person who has failed to file or make a return as and when required by or under this Act or a regulation or who has failed to comply with subsection 116(3), 127(3.1) or 127(3.2), 147.1(7) or 153(1), any of sections 230 to 232 or a regulation made under subsection 147.1(18) or with an order made under subsection 238(2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to

(a) a fine of not less than $1,000 and not more than $25,000; or

(b) both the fine described in paragraph 238(1)(a) and imprisonment for a term not exceeding 12 months.

(2) Where a person has been convicted by a court of an offence under subsection 238(1) for a failure to comply with a provision of this Act or a regulation, the court may make such order as it deems proper in order to enforce compliance with the provision.

[Emphasis added]

[29]        In its reasons in R. v. David Lindsay (David-Kevin: Lindsay), 2006 BCCA 150 the Court of Appeal commented upon Mr. Lindsay’s “person” argument. Madam Justice Newbury, for the court, stated:

[2] At the outset, however, I should note a unique, or at least unusual, feature of this case – Mr. Lindsay’s assertion that he is neither “a person” for income tax purposes nor “the person” charged with the income tax offences. When the Crown’s Information setting out the charges and the Summons were left at his house, he purported to refuse them and returned the Information and Summons to the Justice of the Peace marked “Void. Refused and Returned for Fraud, David-Kevin: Lindsay”. (A copy of his letter to the Justice of the Peace dated December 22, 2003, is unfortunately obscured in the Appeal Book, but that letter and Mr. Lindsay’s affidavit leave no doubt that Mr. Lindsay received the Information and Summons.)  Mr. Lindsay also wrote on the documents:

            I, David-Kevin: Lindsay, Am A Free will, Full Liability, Flesh And Blood        Living Man, Created By God. I Am Not The “Person” David Kevin          Lindsay Charged And/or Named And/or Otherwise Identified On Each            Count 1, Count 2, Count 3, Count 4 And Count 5 On This Information.

He did not say he is not “David-Kevin: Lindsay”, which name also appeared on the Information.

[3] As far as not being “a” person, Mr. Lindsay relies on the definition of “person” at s. 248 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended, which states:

"person", or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity's taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of Canada to which the context extends;

Notwithstanding the word “includes”, Mr. Lindsay takes the position that only artificial persons such as corporations come within the definition, so that he is not subject to the requirement to file a return under the Income Tax Act. This position ignores the fact that the ordinary meaning of “person” is a natural person (including, I would have thought, a “free will, full liability flesh and blood living man”) and that the purpose of the statutory definition is to extend the meaning to include other specified legal entities as well. Mr. Lindsay’s position that he is not a “person” for purposes of the Income Tax Act is simply not tenable.

[30]        However the Court of Appeal also noted, at para. 22, that at the trial, the Crown would be obliged to prove that Mr. Lindsay is in fact the person who has failed to file the income tax returns as alleged.

[31]        Somewhat similar arguments to those made by Mr. Lindsay before me and in the Provincial Court were made by him (as he acknowledged before me) acting as an agent for another person in an Ontario case: Kennedy v. Canada (Customs and Revenue Agency), [2000] O.J. No. 3313; 2000 Carswell Ont 3182 (Ont. S.J.). In that case, Sedgwick J. rejected the applicant’s arguments that the definition of “person” under the Act did not encompass a natural person. He stated at paras. 17-21:

[17] These definitions taken from dictionaries including dictionaries of legal terms are uniform and clear. A “person” in its ordinary meaning includes a human being or a natural person as well as an artificial person such as a corporation. The primary sense of the word is a natural person; the secondary sense, an artificial person such as a corporation.

[18] The Interpretation Act (Canada) is consistent with this ordinary meaning. Section 35 of that Act defines a “person”, as follows:

“person” or any word or expression, descriptive of a person includes a corporation.

The use of the verb “includes” extends the definition to include a corporation. The definition does not exclude a human being. In the French text of the Act, the meaning is even clearer:

« personne » Personne physique ou morale; Tune ou l’autre notions sont visées dans des formulations générales, impersonnelles ou comportant des pronoms ou adjectifs indéfinis.

A “personne physique” is a natural person; a “personne morale” is a corporation.

[19] I am, therefore, driven to the conclusion that in its ordinary meaning and in its common or popular sense, the word “person” in a statute includes both natural persons and corporations.

[20] I am also driven to the conclusion that there is nothing in the context of the Income Tax Act or in the authorities to which Mr. Lindsay has referred me, that would support the interpretation that in the Income Tax Act, Parliament intended the word “person” to be used in the narrower sense of comprising only corporations or other artificial persons. The statutory definition of a “person” in section 248(1) of the Income Tax Act includes “the heirs, executors, administrators… of such a person”. Only a natural person who has died has “heirs, executors, administrators…”. A corporation or other artificial person does not. As the English jurist Lord Chancellor Thurlow (1731-1806) is quoted as saying: “Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?” J. Poynder, Literary Extracts, (1844) Vol. 1, page 268.

[21] I find that a “person” as defined in s. 248(1) of the Income Tax Act includes both a natural person and an artificial person. It follows that the applicant is a “person” and a “taxpayer”. I also find that he is a person “resident” in Canada. Either a corporation or a person may be “resident” or, indeed, for other legal purposes “domiciled”, in Canada or elsewhere. As a “person”, the applicant has the same rights and obligations as any other “person” under the Income Tax Act. His obligations include the filing of annual income tax returns and the payment of any income tax owing under his returns.

[32]        Kennedy was applied by Mr. Justice R.D. Wilson of this Court in HMTQ v. Galbraith, 2001 BCSC 675. That was an application to extend time for filing of an appeal, following the applicant’s conviction in the Provincial Court for offences under the Act. Justice Wilson denied the application, holding that there was no reasonable ground of appeal. The reasons identify one “Dave Lindsay” as the agent for the applicant. Wilson J. stated as follows:

[36] The first step to wisdom is getting things by their right names.

[37] Mr. Lindsay advanced this same argument before the Ontario Superior Court of Justice in Kennedy v. Canada (Customs and Revenue Agency), [2000] O.J. No. 3313 on 20 July 2000. The argument was not accepted. I find the reasoning in Kennedy dispositively compelling. This is not a reasonably arguable ground.

[38] No argument was advanced that it was in the interests of justice, that is to say in the interest of the parties, that the extension be granted. It may be that an extension is in the interest of Mr. Galbraith; but that is not the test.

[33]        I consider myself bound by the decision in Galbraith, in accordance with the principles set out in Re Hansard Spruce Mills, [1954] B.C.J. No. 136, [1954] 4 D.L.R. 590 (S.C.). In any event I agree that Kennedy is “dispositively compelling”. Furthermore, while it may be that as Mr. Lindsay argues the comment of Newbury J.A. that Mr. Lindsay’s “person” argument is “not tenable” is an obiter dictum, I agree with that conclusion and I apply it here.

[34]        Galbraith and Kennedy were applied by Associate Chief Judge Stansfield, as he then was, of the Provincial Court, in R. v. Dick, 2003 BCPC 13, a case in which David-Kevin: Lindsay initially appeared as agent for the accused. As in the case at bar, R. v. Dick involved a failure to file tax returns upon a notice to do so. The accused was convicted. In the course of his reasons Stansfield, A.C.J. reviewed many relevant authorities regarding the enforceability of the Act. In reference to the argument made by Mr. Dick that he was not a “person” or a “taxpayer” within the meaning of the Act, Judge Stansfield stated at paras. 26-27:

[26] In this case the term falls to be interpreted in the context of the Income Tax Act. That very specific question has already been judicially considered by the Supreme Court of British Columbia, a court by whose decisions I am bound. For what it is worth, I share the opinion of the Honourable Mr. Justice Wilson in Galbraith (supra) - but more importantly I am bound by that decision as a matter of stare decisis - that the reasoning of the Honourable Mr. Justice Sedgwick in Kennedy v. Canada Customs and Revenue Agency [2000] O.J. No. 3313 (interestingly, also a case in which Mr. Lindsay appeared as agent) is "dispositively compelling" on this issue....

[27] I am bound to decide, but would in any event decide, that the defendant is a "person" and a "taxpayer" within the meaning of the Income Tax Act.

[35]        The ordinary sense of the word “person” in the Act is without ambiguity. It is clear that Parliament intended the word in its broadest sense. This is consistent with the scheme and object of the Act, which is to enforce payment of a tax on income from all persons residing in Canada, in accordance with the provisions set out in the Act: s. 2:

2. (1) An income tax shall be paid, as required by this Act, on the taxable income for each taxation year of every person resident in Canada at any time in the year.

[36]        In reviewing the legislative scheme and history of the Act in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, Justices Iacobucci and Major, for the Supreme Court of Canada, stated atpara. 49:

Every person resident in Canada during a given taxation year is obligated to pay tax on his or her taxable income, as computed under rules prescribed by the Act (ITA, s. 2; Smerchanski v. M.N.R., [1977] 2 S.C.R. 23, at p. 32, per Laskin C.J.).

[37]        During the course of the argument on the appeal, Mr. Lindsay referred on several occasions to the “modern principle” of statutory interpretation. That principle was appropriately relied upon by the learned trial judge in his decision on this issue. Sinclair J. said as follows at paras. 37-40:

[37]      There is only one principle of statutory interpretation that is relevant here. That is made clear by the Supreme Court of Canada in Stubart Investments Ltd. v. The Queen [1984] 1 SCR 536. As regards the interpretation of taxing statutes, Mr. Justice Estey said this at page 578:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament.

[38]      The goal of the Income Tax Act is obviously to permit the recovery of taxes for the Crown. Simply put, it requires everyone who earns income in Canada (and perhaps sometimes outside of Canada) to report that income and to pay taxes on it as required by the Act and Regulations. That is the scheme of the Act. The argument that some men (or women) can opt out of the Act by choosing not to be “person” or by renouncing their “personhood”, while at the same time being at liberty to use public parks, highways, buildings, airports, healthcare, and everything else the Province and the Country provide, without paying their fair share of taxes, is untenable.

[39]      From a practical point of view, I agree with Ms. Todd, when she testified that she believed that every man, woman and child is a person, even though none are expressly mentioned in the s. 248 of the Act. That was obviously the clear intention of Parliament when reading the word “person” in its grammatical and ordinary sense in the context of the Act. For Mr. Lindsay to believe that he can unilaterally cancel or void being a person is, with respect, nonsense.

[40]      Section 248 defines “taxpayer” as including any person whether or not liable to pay tax. Thus, for all practical purposes, the terms “person” and “taxpayer” are interchangeable. I conclude that Mr. Lindsay is both a person and a taxpayer within the meaning of the Income Tax Act.

[38]        Judge Sinclair was undoubtedly correct in deciding that Mr. Lindsay is a “person” within the meaning of the Act and specifically within the meaning of sections 231.2(1) and 238(1) thereof.

[39]        What really lies at the heart of Mr. Lindsay’s arguments is his contention that compliance with the Act is voluntary. There is simply no legal foundation for this contention. By definition a tax is a payment that is: (1) enforceable by law (hence compulsory); (2) imposed under the authority of the legislature; (3) levied by a public body; and (4) intended for a public purpose: Eurig Estate (Re), [1998] 2 S.C.R. 565, at paragraphs 15-23; V. Krishna, The Fundamentals of Canadian Income Tax, 7th ed. (Toronto: Carswell, 2002) at 8.

[40]        I turn to the factual issues of whether Mr. Lindsay, the person in court on the charges, was the person who had been served with the notices and who failed to comply.

[41]        In that respect, Judge Sinclair said as follows at para. 4:

I am satisfied that Dave Lindsay, David Lindsay, David Kevin Lindsay, and David-Kevin: Lindsay are one and the same and that the party charged is the man before the Court.

[42]        He then referred extensively to the evidence heard at trial. That evidence consisted of the Crown’s binder of documentary exhibits which included affidavits of service sworn by Ms. Tracy Ellen Todd, an officer of the Canada Customs and Revenue Agency (“CCRA”), in relation to the notices under s. 231.2(1)(a) to provide a T-1 income tax return for each of the years 1997 through 2001, within 120 days addressed to “David Kevin Lindsay (David-Kevin:Lindsay)”. The record also includes Ms. Todd’s affidavits that upon careful examination of the records she was unable to find that David Kevin Lindsay (David-Kevin: Lindsay) had provided such returns as required. These affidavits were admissible for the proof of their contents in accordance with s. 244 of the Act.

[43]        Further affidavit evidence sworn by Ms. Todd and admitted at the trial pursuant to s. 244(9) of the Act included copies of the requests to file the tax returns which had been returned to CCRA marked “VOID – I REFUSE AND RETURN FOR FRAUD”. These were signed “David-Kevin: Lindsay” and dated June 30, 2003. Also included were “affidavits” apparently signed by David-Kevin: Lindsay, which among other things, deny that the affiant is a “person”. She also included signed copies of applications for social insurance numbers from 1979 and 1980 in the name of David Kevin Lindsay, and a replacement Social Insurance Card application form dated September 13, 2002 in the name of “David-Kevin: Lindsay”, which references the same SIN number and date of birth and other personal information as that shown on the earlier applications. This establishes that David-Kevin: Lindsay is the same person as David Kevin Lindsay.

[44]        At the trial Ms. Todd testified in person regarding service by her of the notices to file, and the return to CCRA of the notices marked as set out above. Most significantly, she identified the accused, Mr. Lindsay, the person physically in the courtroom, as the same person who she had personally served with the notices to file the tax returns. She testified again that no tax return had been received by CCRA.

[45]        Judge Sinclair concluded as follows:

[7]        …He believes that if he repeatedly deposes that he is not the party charged it will become true. In light of the evidence of Ms. Todd, I do not accept that he is not the party charged. The fact of the matter is that Dave Lindsay, David Lindsay, David Kevin Lindsay, and David-Kevin: Lindsay are one and the same and that that party, by whatever name, is the accused before the Court.

[46]       In the result, I am satisfied beyond a reasonable doubt that the evidence of Ms. Todd and the exhibits contained within Exhibit No. 2 prove beyond a reasonable doubt that the accused David Kevin Lindsay, (David-Kevin:Lindsay) was properly served with the Requirements pursuant to the provisions of s. 231.2(1)(a) of the Income Tax Act, and that he failed to file the Income Tax Returns which were the subject of the requirements for the years 1997 through 2001 within the time frame specified in the requirements. The law makes it clear that failing to respond to a Requirement is a strict liability offence. The offence of due diligence is available to an accused. In this case, it is clear that the accused did not do what a reasonable person would have done in the circumstances to avoid committing the offences. He deliberately did not file the tax returns in question. In fact, he went so far as to invite the Crown to pursue charges against him. The accused must be convicted. I find him guilty of all counts in Information 59021-1.

[46]        Although Mr. Lindsay did not testify at the trial on his own behalf, he submitted to the court various “affidavits” sworn or affirmed by him. It does not appear that the affidavits were formally admitted into evidence. However they were submitted to the court by the accused and were clearly intended by him to be relied upon by the trial judge. On the hearing of the appeal before me, Mr. Lindsay submitted a book of affidavits which he maintained formed a part of the evidence at the trial. Judge Sinclair refers to Mr. Lindsay’s affidavits in paras. 6, 7, and 31 of his decision. Mr. Lindsay’s affidavits alone provide ample proof of the facts necessary to convict Mr. Lindsay of the offences. The affidavits also establish that Mr. Lindsay was served with the Information charging the offences, and the Summons to attend court. However the evidence led by the Crown was more than sufficient to found the convictions, without Mr. Lindsay’s affidavits.

[47]        I conclude that there was ample evidence before the trial court to convict Mr. Lindsay of the offences charged. The verdict of the trial court was not unreasonable or unsupportable.

Second issue: Should the judgment be set aside on the ground of a wrong decision on a question of law?

[48]        I have already dealt with Mr. Lindsay’s main legal argument concerning the question of whether he is a “person” within the meaning of the Act.

[49]        Mr. Lindsay makes a number of other arguments that are also not tenable. As noted, Mr. Lindsay made substantially the same arguments before me on the appeal as he did before Judge Sinclair at the trial. In short, Mr. Lindsay has not persuaded me that Judge Sinclair made any wrong decision on a question of law. Out of deference to Mr. Lindsay’s efforts in making his arguments, I will comment on some of them. Those not specifically mentioned were duly considered by me during the three days taken for the hearing of this appeal and in my deliberations.

[50]        Mr. Lindsay makes several arguments concerning the coronation oath sworn by Her Majesty Queen Elizabeth II on June 2, 1953. Judge Sinclair summarized in some detail the arguments Mr. Lindsay makes in this regard at paras. 15 to 25 of his decision. He previously had considered and rejected similar submissions in his ruling of October 14, 2005. In summary, Mr. Lindsay argues to the effect that there was a defect in the coronation oath, or that Her Majesty has not complied with the oath, resulting in a lack of constitutional authority in the Parliament of Canada in relation to the enactment and enforcement of the Act, or rendering the Act unenforceable. In fact the argument goes further: Her Majesty’s judges and courts lack constitutional authority to enforce laws such as the Act which in the submission of Mr. Lindsay, conflict with the coronation oath.

[51]        In Kennedy Justice Sedgwick held at para. 23 that the Act is valid legislation, duly enacted by the Parliament of Canada, enforceable in accordance with its terms. It is settled law that the Act is intra vires the federal government: R. v. Bruno 2001 BCSC 1828; Bruno v. Canada Customs and Revenue Agency, 2002 BCCA 47. The Act is applied daily in the courts of Canada and has been accepted as valid legislation for many decades. In Jarvis, the Supreme Court of Canada noted at para. 47: “The [Income Tax Act] legislative scheme has received ample attention from this Court.”  I conclude, as did Judge Sinclair, that the Act is valid legislation, duly enacted by the Parliament of Canada. This conclusion is sufficient to dispose of Mr. Lindsay’s arguments concerning the coronation oath of the Queen and the validity of the legislation in question.

[52]        Moreover, if there are issues relating to the Coronation oath taken by the Queen, and I don’t concede that there are or could be any such issues, they are in my view non-justiciable.

[53]        In O'Donohue v. Canada, [2003] O.J. No. 2764 (Ont. S.C.J.) Justice Rouleau held that issues relating to the succession of the monarchy are not justiciable. The decision was affirmed by the Ontario Court of Appeal for the reasons given by Justice Rouleau: O'Donohue v. Canada, [2005] O.J. No. 965 (C.A.).

[54]        Justice Rouleau stated at para. 13:

13     As stated by Dickson C.J.C. in Canada (Auditor General) v. (Canada Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 at 90-91, the determination of whether a matter is justiciable "is, first and foremost, a normative enquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the polity." Dickson C.J.C. recognized that "there is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme."

[55]        If accepted, Mr. Lindsay’s arguments would call into question the legitimacy and authority of Canada’s constitution and government including its courts. I could be without authority to make the very decisions sought by Mr. Lindsay on this appeal. As noted by Judge Sinclair at para. 34 in his ruling of October 14, 2005, anarchy would prevail. O’Donohue points out that Canada shares the monarch with other countries; legal symmetry with them must be maintained. Quite apart from there being no merit to Mr. Lindsay’s arguments in this respect, the issues he seeks to raise are non-justiciable on the basis of the principles enunciated by Dickson C.J.C. in the above-noted passage.

[56]        Mr. Lindsay argues that Judge Sinclair erred in not producing his own oath of office, and in not delivering to himself a subpoena and requiring that he testify concerning his understanding of his oath. Judge Sinclair dealt with these issues in his ruling of October 14, 2005, which as I noted previously was the subject of an unsuccessful application for judicial review, decided by Barrow J. of this Court January 6, 2006: R. v. Lindsay, 2006 BCSC 188; appeal dismissed by the Court of Appeal: R. v. Lindsay, 2007 BCCA 214. There, the Court of Appeal held that it is not appropriate to interrupt criminal trials or to interfere with their progress with applications for judicial review. The appeal was dismissed on that basis. The history of this case demonstrates the importance of that principle.

[57]        In his ruling of October 14, 2005, Judge Sinclair set out in full the Order-in-Council by which he was appointed, and the oath of office that he took upon assuming his judicial duties. Although unnecessary, he stated and I accept that he understood his oath and has adhered to it. It appears to me based upon his addendum dated October 25, 2005 that Judge Sinclair also produced a copy of his oath of office.

[58]        There is in fact no issue whatsoever concerning Judge Sinclair’s authority to deal with the charges against Mr. Lindsay.

[59]        In his decision of January 6, 2006 on judicial review Barrow J. held that Judge Sinclair had no material evidence to give in relation to the matter before the court. I concur with that decision.

[60]        Mr. Lindsay argues that Judge Sinclair was biased and lacked judicial independence. The basis for this argument is primarily that on the seventh day of trial, March 27, 2008, Judge Sinclair advised Mr. Lindsay during the course of Mr. Lindsay’s submissions that he would be required to conclude his argument within the two days scheduled, which were March 27 and March 28, 2008. In so doing Judge Sinclair stated, “Those higher up the food chain than you and me have said that today and tomorrow is it. So, we’ve got to get through this. They’re saying there is no more time for this.”

[61]        From this off-hand comment, Mr. Lindsay speculates, without any foundation, that Judge Sinclair may have been improperly influenced by others, such as the Chief Judge, the Canada Revenue Agency, the Minister of National Revenue, or the Premier or Prime Minister.

[62]        Mr. Lindsay further argues that there were other arguments that he wished to present to Judge Sinclair but could not do so within the limited time available.

[63]        The transcript of the two days of final submissions before Judge Sinclair comprises a total of 236 pages. Mr. Lindsay’s submissions occupy 232 pages; the Crown’s submissions occupy the other 4 pages. In addition, as I previously noted, Mr. Lindsay provided Judge Sinclair with a written submission, also relied upon before me, consisting of 834 paragraphs taking up 255 pages. It is apparent that Judge Sinclair reviewed the written material submitted as it is referred to in several instances in his reasons for judgment. Prior to the final submissions Mr. Lindsay had made other lengthy submissions at various times, leading to Judge Sinclair’s interim rulings.

[64]        Mr. Lindsay declined to cross examine the Crown’s only witness, Ms. Todd, upon the conclusion of her evidence in chief on the second day of trial, April 22, 2005, taking the position that he had “no standing” to do so as he was not the accused. It appears that following the close of the Crown’s case there was much delay caused by Mr. Lindsay’s preliminary legal arguments and applications for judicial review. At a much later stage Mr. Lindsay sought and obtained Ms. Todd’s re-attendance at the trial so he could call her as a witness in the defence case. Ms. Todd testified at length in what was in effect a cross-examination, over the course of two days, May 3 and 4, 2007. Much of her testimony on the cross-examination consisted of irrelevant sparring with Mr. Lindsay concerning such matters as her understanding of the meaning of the word “person.”

[65]        A trial judge has the power to control the course of the proceedings, including making directions to ensure that the trial proceeds in an orderly manner, and to place reasonable limits on submissions: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 35; R. v. Violette, 2008 BCSC 995 at paras. 10-17; R. v. Sipes, 2008 BCSC 1257; R. v. Felderhof, [2003] O.J. No. 4819 (C.A.) at para. 57.

[66]        Upon my review of the record of the proceedings provided to me on this appeal, I have no doubt that relying on his power to manage the trial process Judge Sinclair properly limited the submissions of the accused. There is no basis for the suggestion that in doing so he was improperly influenced by anyone. His reference to “others higher up in the food chain” was not intended literally, and merely reflected recognition by him of his duty to manage the process and to keep the trial within some reasonable bounds while ensuring fairness to the accused. The record makes it abundantly clear that Mr. Lindsay was afforded every opportunity to make full answer and defence, and indeed Judge Sinclair demonstrated extraordinary patience and respect for Mr. Lindsay in that regard. There is no doubt that Mr. Lindsay had more than a full opportunity to present and argue his case. This is especially so given the simple nature of the charges as strict liability offences.

[67]        Mr. Lindsay argues that he should have been permitted to challenge the jurisdiction of the court by entering what he called a “plea of abatement” rather than the not guilty plea that was entered on his behalf by Judge Stansfield. No such plea is known to the law. Section 606 of the Code provides for pleas of guilty or not guilty, or special pleas not relevant here. Section 606(2) provides that where the accused refuses to plead or does not plead directly, the court shall order the clerk of the court to enter a plea of not guilty. That is what occurred here. Section 613 provides that any ground of defence for which a special plea is not provided by the Code may be relied on under the plea of not guilty. In short, Mr. Lindsay was entitled to challenge the jurisdiction of the court under the not guilty plea entered on his behalf, and he did so, unsuccessfully. There was no error in any of this.

Third issue: Was there a miscarriage of justice, on any ground?

[68]        Mr. Lindsay made no specific argument regarding a miscarriage of justice, as such. In any event none of his arguments have persuaded me that there has been a miscarriage of justice.

[69]        In the result, and for the reasons set out above, I conclude that Mr. Lindsay’s appeal of his convictions must be dismissed.

Fourth issue: Was the sentence imposed fit; if not, how should it be varied?

[70]        Mr. Lindsay also appeals against the sentence imposed. As noted at the outset of this judgment, he was sentenced to 30 days imprisonment for each offence, to be served consecutively, less credit for time served. Thus he was sentenced to a total term of imprisonment of 150 days, less what is described in the reasons as the equivalent of 38 days spent in pre-trial custody. Mr. Lindsay was also ordered to pay the statutory minimum fine of $1,000 for each offence, and ordered to comply with the notices to file the tax returns on or before June 30, 2009. Judge Sinclair rejected Mr. Lindsay’s submission that he should receive a conditional sentence or be allowed to serve the sentence on an intermittent basis.

[71]        In sentencing Mr. Lindsay, Judge Sinclair referred to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.1 of the Code. He emphasized the purposes of denunciation and deterrence of others. He noted that in view of Mr. Lindsay’s professed attitude to payment of taxes, rehabilitation of Mr. Lindsay was not a significant factor. He was satisfied that on the principles of general deterrence and denunciation, a period of incarceration was required. Mr. Lindsay submitted that a conditional sentence, that is, a sentence served in the community subject to conditions, pursuant to s. 742.1 of the Code, was warranted. Judge Sinclair indicated that he had considered it and that such a sentence was not consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code.

[72]        Mr. Lindsay argues that incarceration is not warranted. He argues that he is a first time offender, and that in like cases other offenders have received fines, only. He directs me to a number of decisions and in particular, the decision of Mr. Justice Rice in R. v. Meikle, 2005 BCSC 1398. In that decision the appellant, Mr. Meikle, had been sentenced in the provincial court on six counts of failure to file tax returns upon a notice being served, the same offence as in the case at bar. The sentence imposed was a fine of $1,500 on the first three counts, and 30 days consecutive on the remaining 3 counts, for a total time of 90 days incarceration.

[73]        Rice J. varied the sentence, imposing instead a fine of $2,500 on each count, for a total of $15,000. Rice J. commented at paras. 50-51:

[50]      Reviewing the authorities submitted and the facts, I am persuaded that incarceration is not appropriate because the appellant is a first offender and because he has now submitted the returns demanded. To that extent, the sentence was manifestly excessive and outside the generally accepted range in these circumstances. A fine is appropriate.

[51]      However, I believe that Judge Cartwright rightly and reasonably treated the matter as more serious than the case of a neglectful, first-time, repentant non-filer. This was a deliberate violation that spanned six years, and nothing by way of remorse has been expressed by the appellant. In fact, it was disclosed that he has yet to file his return for 2004. I accept Crown Counsel’s submission that general and specific deterrence as well as denunciation must be reflected in the sentence.

[74]        On this appeal, the Crown conceded that the sentence imposed exceeded the generally accepted range for first time offenders convicted of similar offences and that on that basis reconsideration of the sentence by this Court is warranted. No case has been cited to me where incarceration has been ordered for a first time offence of failing to file tax returns. The Crown suggested that the sentence of incarceration be varied from consecutive sentences to concurrent, with the consequence that the 150 day sentence becomes 30 days.

[75]        The distinction between this case and Meikle is that here, Mr. Lindsay has not filed the tax returns required. I view that distinction as fundamental. In that case Mr. Meikle eventually complied with the law. Mr. Lindsay has not.

[76]        Mr. Lindsay expresses not the slightest degree of remorse; in fact, he is defiant. He says flatly, “Taxation is theft”. The trial judge noted in his sentencing reasons that: “Mr. Lindsay also told me during the course of the trial that no matter what the result, he would never file another tax return.”  While I recognize that Mr. Lindsay has not been convicted of a failure to pay tax, and the convictions relate only to the failure to provide the tax returns as required, it would ignore reality to view this case as a simple matter of a first offence for failure to comply with the obligations under the statute. The reality is that this case is central to Mr. Lindsay’s campaign over many years to flout his legal obligations. I was at first somewhat doubtful concerning whether there was a proper basis for the comment of the trial judge that, “He is seen as one of the leaders, if not the leader, of what he refers to as the Tax Honesty or Tax Freedom Movement.”  However after hearing and reading Mr. Lindsay’s submissions in this Court and the court below, and reviewing in detail the record of the proceedings in the Provincial Court, I am satisfied that there is a proper foundation for that conclusion.

[77]        Mr. Lindsay’s defiance has been deliberate and prolonged. The learned trial judge was of the view that a substantial custodial sentence is warranted. I am mindful of the deference that is due to the sentencing decision of the trial judge. I agree with the trial judge that the factors of denunciation and general deterrence are foremost in this matter. If other Canadians followed Mr. Lindsay’s example, the collection of income taxes would become all but impossible. It is the obligation of all Canadians and residents of Canada, all of whom enjoy the benefits of a peaceful and democratic society, to pay taxes as required by law in order to allow society to function. Mr. Lindsay’s views are seriously misguided. His misconduct warrants denunciation, and indeed condemnation, which must be reflected in the sentence imposed. In my view a non-custodial sentence does not accomplish the purpose and comply with the principles of sentencing set out in the Code.

[78]        However I must be mindful of the principle set out in s. 718.2(b) of the Code that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. I am satisfied that the sentence the trial judge imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes, and must therefore be varied.

[79]        I accept that a sentence of incarceration is warranted. I agree with the Crown’s submission that the sentence imposed should be varied to one of 30 days imprisonment on each count, to be served concurrently, so that the total period of incarceration is 30 days rather than 150 days. Judge Sinclair granted credit for what he described as the equivalent of 38 days in prior custody. There is no record before me as to how that time was calculated. At least part of the time in custody was caused by Mr. Lindsay’s own failure to appear to in court, and subsequent refusal, before Judge Stansfield, to enter into a recognizance that would have allowed for his release.

[80]        I will grant credit for pre-sentence custody as I see no reason to interfere with the decision of the trial judge in that respect. However as an actual sentence is required to be imposed under s. 719(1) of the Code, and pre-sentence custody is merely a factor to be considered, I will impose a sentence of one day. Therefore I will grant credit for 29 days of pre-sentence custody.

[81]        In imposing an actual  sentence of one day after taking into account the pre-sentence custody I am mindful of the comments of Neilson J.A. in R. v. Mizen, 2009 BCCA 253 at paras. 10-11:

[10]      I consider it clear that the sentence referred to in s. 719(1) is the actual sentence imposed by the judge. While s. 719(3) gives the sentencing judge discretion to consider pre-sentence custody in determining what that actual sentence should be, it does not state that pre-sentence custody is part of the sentence to be imposed.

[11]      That view was endorsed by Madam Justice Ryan in a concurring judgment in R. v. Coutu (1997), 12 C.R. (5th) 324, 101 B.C.A.C. 241 in which this Court allowed a Crown sentence appeal with respect to four offences. Two of the sentences had been expressed by the sentencing judge as “time served”. At paras. 21-25, Ryan J.A. stated that “time served” was not a disposition open to the sentencing judge due to the wording of s. 719(1). The offender did not begin serving his sentence until it was imposed, and pre-sentence custody thus could not be “time served”. It was merely a factor that the judge could take into account by discounting the actual sentence that he or she eventually imposed.

[82]        Therefore the sentence I would have imposed prior to taking into account the pre-sentence custody is 30 days, to be served concurrently on each of the five counts. After taking into account the pre-sentence custody, the actual sentence now imposed is one day.

[83]        Although the matter is of little practical consequence, I will comment on the submission of Mr. Lindsay that he should not be incarcerated, and that a conditional sentence would be appropriate.

[84]        In relation to these offences and this sentence, the court may order that the sentence be served in the community subject to conditions, pursuant to s. 742.1 of the Code, if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. In the view of the trial judge and in my view it would not be consistent with the purpose and principles of sentencing set out in the Code to allow the sentence to be served in the community. The principles of denunciation and general deterrence require that there be a custodial sentence.

[85]        In the circumstances it is unnecessary for me to consider whether an intermittent sentence under s. 732 of the Code would be appropriate. I note for the record that I heard nothing from Mr. Lindsay to suggest that an intermittent sentence would allow him to retain gainful employment, and I would not therefore in all of the circumstances of the case have been prepared to allow the sentence to be served intermittently.

[86]        The fine of $1,000 per count (total of $5,000) and the compliance order are affirmed.

[87]        The existing order of the court requires that Mr. Lindsay comply with the notices to file the returns by June 30, 2009. Unless Mr. Lindsay has already obtained an order extending the date for compliance with the notices, I order that he shall file the returns within 60 days of the date of issuance of these reasons.

[88]        Mr. Lindsay is required to pay the fines within 90 days of the date of issuance of these reasons.

Conclusion

[89]        The convictions of Mr. Lindsay are affirmed. The sentence imposed is varied in accordance with these reasons.

__________________________________

“The Honourable Mr. Justice F. Verhoeven”