R. v. Port Chevrolet Oldsmobile Ltd. et al., 2010 BCCA 47

• Judge: Saunders, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 25, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 47;(2010), 282 B.C.A.C. 219 (CA)

R. v. Port Chevrolet (2010), 282 B.C.A.C. 219 (CA);

    476 W.A.C. 219

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MR.003

Regina (respondent) v. Port Chevrolet Oldsmobile Ltd. and Michael Wolfe (appellants)

(CA035360; 2010 BCCA 47)

Indexed As: R. v. Port Chevrolet Oldsmobile Ltd. et al.

British Columbia Court of Appeal

Saunders, Bennett and Garson, JJ.A.

January 26, 2010.

Summary:

The Crown appealed from the sentence imposed on Wolfe for seven counts of GST offences (Excise Tax Act, ss. 327(1)(c) and (d)). He was sentenced to two years' less a day incarceration on each count, to be served concurrently, along with fines totalling just over $6.9 million, with a further eight months' incarceration should he be in wilful default of the fines. Wolfe was not the principal in the fraudulent scheme. The Crown suggested a sentence of four or five years.

The British Columbia Court of Appeal dismissed the appeal. The court was unable to conclude that the sentence was demonstrably unfit.

Sales and Service Taxes - Topic 5401

Goods and services tax (incl. harmonized sales tax) - Offences and penalties - General - The Crown appealed from the sentence imposed on an accused for seven counts of GST offences (Excise Tax Act, ss. 327(1)(c) and (d)) - The British Columbia Court of Appeal stated that "[g]iven the nature of the offences in this case, it bears mentioning that the principle of general deterrence and denunciation must play a significant role in the sentence imposed. No doubt it is that principle that caused the judge to impose a period of incarceration even though the length of sentence is one which could attract a conditional sentence. Yet at the same time, the sentence must be nuanced to reflect the degree of culpability of the offender, reflect the particular circumstances of the offender and the offence including considerations specific to the offender, have a degree of parity to cases involving like offenders and like offences, and fit within the sentencing provisions of the governing statute" - See paragraph 16.

Sales and Service Taxes - Topic 5401

Goods and services tax (incl. harmonized sales tax) - Offences and penalties - General - The Crown appealed from the sentence imposed on an accused for seven counts of GST offences (Excise Tax Act, ss. 327(1)(c) and (d)) - The British Columbia Court of Appeal noted that the maximum sentence for an offence under s. 327 was five years, in contrast to the maximum sentence for fraud under the Criminal Code (14 years) - However, the Excise Tax Act required the sentencing judge to impose a fine in an amount between 100% and 200% of the amount involved in the fraud, which produced the fines totalling just over $6.9 million - "As each sentence was comprised of two distinct portions, and there are seven offences, totality of sentence is a proper consideration, such that in total, the sentences imposed fully but not excessively respond to the offences" - See paragraph 17.

Sales and Service Taxes - Topic 5416

Goods and services tax (incl. harmonized sales tax) - Offences and penalties - Fines - [See second Sales and Service Taxes - Topic 5401 and Sales and Service Taxes - Topic 5417 ].

Sales and Service Taxes - Topic 5417

Goods and services tax (incl. harmonized sales tax) - Offences and penalties - Imprisonment (incl. conditional sentence) - The Crown appealed from the sentence imposed on Wolfe for seven counts of GST offences contrary to ss. 327(1)(c) and (d) of the Excise Tax Act - Wolfe was sentenced to two years' less a day incarceration on each count, to be served concurrently, along with fines totalling just over $6.9 million, with a further eight months' incarceration should he be in wilful default of the fines - Wolfe was not the principal in the fraudulent scheme - The Crown submitted that the sentence departed markedly from the range of sentence normally imposed for substantial and prolonged involvement in an on-going fraud on the public purse, and suggested a sentence of four or five years - The British Columbia Court of Appeal dismissed the appeal - The court was unable to conclude that the sentence was demonstrably unfit - The sentencing judge properly considered the mental element of Wolfe implicit in the convictions, the fact he did not derive direct personal benefit from the crime, the fact he had no criminal record, his remorse and shame, and the burden of the fine, as influencing the length of sentence - See paragraphs 18 to 23.

Cases Noticed:

R. v. DiGiuseppe, [2008] 5 C.T.C. 3; 2008 ONCJ 127, refd to. [para. 12].

R. v. Bjellebo (E.S.) et al. (2003), 177 O.A.C. 378; 2003 D.T.C. 5659 (C.A.), refd to. [para. 12].

R. v. Wilder (D.M.), [2009] 1 C.T.C. 246; 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. 12].

R. v. Elless (J.S.) et al., [2007] B.C.T.C. Uned. H71; 2007 BCSC 962, refd to. [para. 12].

R. v. Alexander Street Lofts Development Corp. et al. (2007), 224 O.A.C. 41; 86 O.R.(3d) 710; 2007 ONCA 309, refd to. [para. 12].

R. v. Davda, [2008] G.S.T.C. 121; 2008 G.T.C. 1309; 2007 BCPC 463, refd to. [para. 12].

R. v. Hofbauer (H.), [2004] B.C.T.C. 1810; 2004 BCSC 1810, refd to. [para. 12].

R. v. Biller (F.J.D.), [2005] B.C.T.C. 1278; 2005 BCSC 1278, refd to. [para. 13].

R. v. Bortolussi (R.), [1998] 1 C.T.C. 145; 36 O.T.C. 189 (Gen. Div.), refd to. [para. 13].

R. v. Ellis (T.L.) (2008), 428 A.R. 334; 2008 ABQB 40, refd to. [para. 13].

R. v. Gray (L.V.) et al. (1995), 76 O.A.C. 387; 95 D.T.C. 5262 (C.A.), refd to. [para. 13].

R. v. Khan (M.) et al. (2002), 181 B.C.A.C. 3; 298 W.A.C. 3; 2002 BCCA 703, refd to. [para. 13].

R. v. Minnie (T.J.) et al., [2007] B.C.T.C. Uned. 217; 2007 BCSC 433, refd to. [para. 13].

R. v. Prokofiew (No. 2), [2004] O.J. No. 5133 (Sup. Ct.), refd to. [para. 13].

R. v. Tulloch, [2002] O.J. No. 5446 (Sup. Ct.), refd to. [para. 13].

R. v. Brown, 2003 BCPC 537, refd to. [para. 13].

R. v. Lempen (J.A.) (2006), 302 N.B.R.(2d) 29; 784 A.P.R. 29; 2006 NBQB 246 (T.D.), refd to. [para. 13].

R. v. Fraser (T.D.) (2009), 269 B.C.A.C. 200; 453 WA.C. 200; 2009 BCCA 179, refd to. [para. 14].

R. v. Johnson (D.K.) (1996), 84 B.C.A.C. 261; 137 W.A.C. 261; 112 C.C.C.(3d) 225 (C.A.), refd to. [para. 14].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 14].

Statutes Noticed:

Excise Tax Act, R.S.C. 1985, c. E-15, sect. 327(1)(c), sect. 327(1)(d) [para. 1].

Counsel:

R. Peck, Q.C., and A.M. Willms, for the appellant;

J. Hyman, for the Crown/respondent.

The Crown's sentence appeal was heard at Vancouver, British Columbia, on January 25, 2010, by Saunders, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following judgment of the court, dated January 26, 2010.