IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  Ivan De Wolf has pled guilty on Information 198902-1, that on June 19, 2012 he failed to report to a Canadian Border Services Officer the importation into Canada of an amount of money exceeding $10,000 in value, contrary to s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and thereby committed an offence pursuant to s. 74 of the Act.

[2]           Sentencing submissions were heard on February 13th, 2014, and I put the matter over to today's date to consider material filed by the defence and to consider cases referred to by counsel.

[3]           The Crown is seeking a $3,000 fine; Ms. Mirsky, on behalf of Mr. De Wolf, seeks a conditional discharge.  The Crown proceeded summarily; the maximum penalty is a fine up to $50,000 or six months' imprisonment, or both. 

[4]           Consideration of a conditional discharge is not precluded by statute.  The Crown opposes a discharge, however, saying the public interest considerations require a denunciatory and deterrent sentence.  The Crown says a conditional discharge in this case does not address those objectives.

[5]           The circumstances are the following:  Mr. De Wolf drove to the Aldergrove Border Crossing, attempting to enter Canada from the United States.  At the primary inspection booth he was asked by the Canada Border Services agent if he was bringing money exceeding $10,000 in value into Canada.  He said he was not.  He was referred for secondary inspection.  The inspecting CBSA agent noted that screws around the glove box of Mr. De Wolf's vehicle appeared to have been tampered with.  The glove box was removed, a bag was found secreted inside containing $20,000 in U.S. bills.  Mr. De Wolf then admitted he knew the money was there and he did not declare it.  He knew of the reporting requirement; he had crossed the border approximately 72 times since August of 2007.  He owned the vehicle and had put the money there in an effort to bring it into Canada without declaring it as he knew was required under the Act.  The money was seized and has been forfeited.  I am advised that Mr. De Wolf bought the vehicle second-hand in the United States.  I am advised that he was aware that the vehicle had been previously modified to create the secret compartment but he had never used it before.  This was the only time he attempted to bring contraband into Canada using the compartment.  I am advised the cash was his share of proceeds from the sale of a collection of coins found in his father's possessions following his father's death.  Ms. Mirsky has provided receipts from the sale of the coins in 2010 to corroborate this assertion. 

[6]           Mr. De Wolf is a U.S. citizen; he grew up in Colorado.  He is a skilled computer programmer.  I am informed that he began his own computer programming business in Los Angeles but the business did not succeed.  He owed money to his creditors, and he owed an amount for unpaid U.S. taxes.  I am advised that he was bringing the cash into Canada secretly in order to hide it from U.S. tax authorities.  I am advised that Mr. De Wolf has now made arrangements and is or has completed the process of carrying out an orderly repayment of his outstanding debts in the United States, including settlement of his outstanding U.S. taxes.

[7]           Mr. De Wolf is 47 years of age.  He has lived in Canada for the last three or four years and is married to a Canadian.  They live in the Squamish area.  He is employed here with a company called Electronic Arts.  He is in Canada on a skilled worker visa.  He has plans to apply for permanent status in Canada in the future.  He has received legal advice in Canada that if a conviction is entered on this charge he will have to answer questions respecting his actions each time he seeks renewal of his visa, or when applying for permanent status in Canada.  I understand that his mother is ill with cancer in Colorado.  Until recently, because of the uncertain status of his visa following this charge being laid, he could not travel to visit her without risking his ability to return to Canada.  At one point I am told he was held in detention at the Vancouver Airport for two days until his circumstances could be sorted out.  I understand that particular difficulty has now been overcome with the recent issuance or renewal of his visa.

[8]           The Crown says that a fine as proposed is in the usual range of sentencing outcomes in cases like this, and referred to a decision in a case called R. v. Danda and Rai (Richmond file No. 58322-1, October 10, 2013) in which a $2500 fine was imposed.  The Crown has also brought to my attention R. v. Wong (Richmond file No. 58324-2, November 7, 2013) in which a $1,000 fine was imposed, and R. v. Fu (Richmond file No. 56377-1, May 23, 2013) in which a $2500 fine was imposed, both of those cases in 2013. 

[9]           The Crown also informed me that a conditional discharge was granted in R. v. Bun (Richmond file No. 54757-1, November 5, 2013) in November 2013, and R. v. Sajid (Richmond file No. 54753-1 February 27, 2013).  An absolute discharge was granted in R. v. Sorrenti (Richmond file No. 57191-1, January 10, 2014).  No circumstances are available for any of these cases.  A conditional sentence order for six months was imposed in R. v. Smith (Surrey registry No. 167325-1, December 9, 2009) on a joint submission involving $165,000.  No such outcome is proposed here.

[10]        Ms. Mirsky has drawn my attention to R. v. Dennis (2013 BCCA 153) in the Court of Appeal in this province.  In that case, which involved offences of fraud on the welfare system in relatively small amounts, the Court of Appeal reviewed the considerations for a conditional discharge set out in R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 CCC (2d) 450 (BCCA), and I have reviewed that case. 

[11]        Section 730(1) of the Criminal Code sets out the considerations upon which a discharge may be granted.  That section states: 

[12]        The offence of failing to report is serious and the quantity of funds in issue here exceeds double the minimum limit requiring declaration.  Nevertheless, the Court of Appeal in Fallofield has said consideration of a discharge is not limited to technical or trivial violations. 

[13]        I am satisfied in this case that a discharge is in Mr. De Wolf's best interest.  I have reviewed the letters from his family, co-workers and associates. They assert that this conduct is out of character with the person who they know well.  He has no prior criminal history.  I accept from what has been said that Mr. De Wolf is remorseful and regrets his actions.  He has acted responsibly, albeit under pressure to ensure his visa and future immigration circumstances are not compromised, to settle his U.S. debts and address his tax obligation.  He readily accepted responsibility once the money was discovered. 

[14]        There is no evidence that he has been involved in a continuing scheme to avoid his obligations to make a proper declaration at the border.  Indeed, he says this was the only occasion and he has provided an explanation which does not flatter him.  He sought to avoid his creditors and he has said so candidly.  He has acted to correct that situation.  I conclude his rehabilitation and personal deterrence are well in hand.  A discharge would be in his best interest, even were visa and immigration implications not an issue. 

[15]        When considering whether a discharge is in Mr. De Wolf's interest, Fallofield allows consideration of significant adverse repercussions which may arise if a conviction is entered.  There is information before me that a conviction will lead to questioning each time Mr. De Wolf seeks to renew his visa.  There is no suggestion that a conviction will lead to refusal of the visa, but that implication or possibility arises.  Similarly, consideration of permanent status in Canada will result in questioning about a conviction.  Mr. De Wolf will face anxiety and uncertainty each time the issue arises.

[16]        The second consideration is whether a discharge would be contrary to the public interest which requires I focus on deterrence generally, denunciation, and protection of the public which includes concern for the integrity of the scheme and the purpose underlying the legislation which is in issue here. 

[17]        The offence here is failure to declare.  Had he made the required declaration, I am told he would not have forfeited the funds, although conceivably some further investigation might have been undertaken which would have resulted in U.S. authorities perhaps learning of those funds.  In this case, Mr. De Wolf has been charged and brought before the courts, he has in fact forfeited the money, and so he has suffered a significant financial penalty.  His conduct here is aggravated by his dishonesty when asked initially if he had funds to declare.  His conduct has been exposed, and he has taken full responsibility.  Perhaps as a positive result, his creditors and U.S. tax authorities are receiving some satisfaction.

[18]        Although a conviction and fine would certainly be a stronger statement of deterrence and denunciation, I conclude in this case that these implications for Mr. De Wolf have general deterrent and denunciatory value.  The funds are not proceeds of crime. 

[19]        In all the circumstances, I conclude it would not be contrary to the public interest were Mr. De Wolf to be discharged.  Such a disposition is proportionate, in my view, to the gravity of the offence and the degree of responsibility of this offender. 

[20]        Mr. De Wolf, if you could stand? 

[21]        There will be a discharge, conditional on completion of a probation order, for a period of 15 months.  The conditions are the following:  That you keep the peace and be of good behaviour.  You will report to a probation officer before four o'clock in the afternoon tomorrow, which is March the 11th, 2014, the address to be provided before you leave the courthouse today, and thereafter as directed by the probation officer.

[22]        You will complete 40 hours of community work service before the end of the ninth month of the probation period. 

[23]        Are there any other conditions that the Crown would want to see included in the probation order, Ms. Bruce?

[24]        MS. BRUCE:  No, Your Honour, just the other mandatory one, notifying the court or probation officer of a change of address.

[25]        THE COURT:  Yes.  You will inform the probation officer of your residential address and will not change that address without the prior written approval of the probation officer.