R. v. Chan (J.Y.-K.), (2012) 548 A.R. 96 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 02, 2012
• Citations: (2012), 548 A.R. 96 (PC);2012 ABPC 272

R. v. Chan (J.Y.-K.) (2012), 548 A.R. 96 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. OC.048

Her Majesty the Queen v. Jason Yiu-Kwan Chan (110873130P1; 2012 ABPC 272)

Indexed As: R. v. Chan (J.Y.-K.)

Alberta Provincial Court

Fradsham, P.C.J.

October 2, 2012.

Summary:

The 43 year old accused, a self-employed investment advisor, pleaded guilty to five counts of trading in a security when not registered (Securities Act, s. 75), five counts of trading in a security without a filed prospectus (s. 110), 16 counts of making a false statement by commission or omission (s. 92(4.1)) and one count of fraud (s. 93(b)). The accused received approximately $1.1 million from five investors. Financial markets declined. The investments were lost. The accused repaid $128,000, with another $70,000 available for distribution to creditors. The accused was now employed at a salary of $63,000 per year and offered to pay $2,500 a month in restitution. The Crown sought a total sentence of four years' imprisonment, plus partial restitution. The accused argued for a 90 day sentence, to be served intermittently, to permit him to continue to work and make restitution.

The Alberta Provincial Court held that denunciation and deterrence required a period of incarceration. The court imposed a global sentence of three years' imprisonment plus restitution in the amount of $62,167.05 to three of the five investors.

Securities Regulation - Topic 5321.1

Trading in securities - Offences - Penalties and punishments - Considerations - [See Securities Regulation - Topic 5325.1 ].

Securities Regulation - Topic 5323

Trading in securities - Offences - Penalties and punishments - Trading without licence - [See Securities Regulation - Topic 5325.1 ].

Securities Regulation - Topic 5325.1

Trading in securities - Offences - Penalties and punishments - Fraud - The 43 year old accused, a self-employed investment advisor, pleaded guilty to five counts of trading in a security when not registered (Securities Act, s. 75), five counts of trading in a security without a filed prospectus (s. 110), 16 counts of making a false statement by commission or omission (s. 92(4.1)) and one count of fraud (s. 93(b)) - The accused received approximately $1.1 million from five investors - He disregarded their instructions concerning risk-avoidance - Financial markets declined - The high risk investments were lost - Although it was never the accused's initial intent to deprive the investors of their funds, he did take steps to avoid detection - He had no prior record and was genuinely remorseful - The Alberta Provincial Court held that denunciation and deterrence were the primary sentencing objectives - The lack of a criminal record was afforded less mitigating weight where the accused's lack of a record (previous good character) was exploited by the accused to commit the offences - The accused breached the trust of the investors - The accused repaid $128,000, with another $70,000 available for distribution to creditors - The accused was now employed at a salary of $63,000 per year and offered to pay $2,500 a month in restitution - The Crown sought a total sentence of four years' imprisonment, plus partial restitution - The accused argued for a 90 day sentence, to be served intermittently, to permit him to continue to work and make restitution - The accused's willingness to make restitution (and the need for an intermittent sentence to work to pay restitution) should not shield him from what denunciation and deterrence required (actual imprisonment) - The court imposed a global sentence of three years' imprisonment plus restitution in the amount of $62,167.05 to three of the five investors.

Securities Regulation - Topic 5326

Trading in securities - Offences - Penalties and punishments - Failure to file a prospectus - [See Securities Regulation - Topic 5325.1 ].

Securities Regulation - Topic 5340

Trading in securities - Offences, penalties and punishments - Restitution order - [See Securities Regulation - Topic 5325.1 ].

Cases Noticed:

R. v. Da Silva, 2012 ONCJ 279, refd to. [para. 31, footnote 3].

R. v. Kreft (J.P.) (2006), 407 A.R. 376 (Prov. Ct.), refd to. [para. 33].

R. v. Boyle (K.P.) et al. (2002), 331 A.R. 273; 2002 ABPC 136, refd to. [para. 34].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 37].

R. v. Rankin, [2005] O.J. No. 4871 (C.J.), refd to. [para. 39, footnote 6].

R. v. Fulcher (J.J.) (2007), 422 A.R. 329; 415 W.A.C. 329 (C.A.), refd to. [para. 42].

R. v. Johnson (J.R.), [2010] A.R. Uned. 796; 2010 ABQB 546, refd to. [para. 45].

R. v. MacDonald (T.W.), [2010] N.S.R.(2d) Uned. 82; 2010 NSPC 33, refd to. [para. 47].

R. v. Bassett, 2009 BCPC 111, refd to. [para. 51].

R. v. Landen, 2009 ONCJ 261, refd to. [para. 55].

Counsel:

Don Young, for the Crown;

Richard N. Billinger, Q.C., for the accused.

This matter was heard at Calgary, Alberta, before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on October 2, 2012.