[1]           These are my reasons for sentence of Michael Knight following his convictions on a number of Real Estate Services Act and Securities Act related offences.

[2]           The charges against Mr. Knight included the following: failing to comply with an order of the Superintendent of Real Estate by providing real estate services, providing real estate services without being licensed under the Real Estate Services Act, failing to comply with an order made under s. 161 of the Securities Act by engaging in investor relations, acting as an investment advisor without being registered under the Securities Act, unlawfully trading a security and unlawfully distributing a security.

[3]           The charges against Mr. Knight arose in relation to two development projects (The Brook and the Deville) in which Mr. Knight was involved.  The Crown’s position was that the projects fell under the Real Estate Services Act and the Securities Act.  Mr. Knight did not deny he was general manager of Streamline and that he had various responsibilities in relation to The Brook project.  However, he defended the charges against him on the basis that the Securities Act and the Real Estate Services Act did not apply to the transactions in which he was involved.  He maintained the Real Estate Services Act did not apply because the complainants were not buying a condominium but instead were participating in the project as developers.  Moreover, he maintained the Securities Act did not apply on the facts of this case because The Brook and the Deville were not offering securities and were not the issuers of securities.

[4]           Following a long trial I found Mr. Knight guilty of 12 offences: see R. v. Knight, 2015 BCPC 397.  With respect to offences under the Real Estate Services Act, I concluded that the investment opportunity offered to the complainants did not fall under the term “real property”; however, it nevertheless fell under the definition of the term “real estate” in the Real Estate Services Act.  I also found the investment opportunity fell within the definitions of the terms “cooperative interest” and “shared interest in land” set out in the Real Estate Development Marketing Act.  Accordingly, I found the investment opportunity offered to and accepted by the complainants in this case fell under the definition of “trade in real estate” under the Real Estate Services Act.

[5]           I also found Mr. Knight provided the types of services that constituted “trading services” as defined in the Real Estate Services Act.  Those services were provided in relation to a trade in real estate regarding The Brook and the Deville developments.  In particular I found that Mr. Knight unlawfully:

[6]           With respect to offences under the Securities Act, I concluded the investment opportunity offered to the complainants by Mr. Knight fell under the definition of “security” in the Securities Act. In particular I found the following:

[7]           Mr. Michael Knight and the co-accused, Mr. Jeffrey Wiegel, were charged with a total of 19 offences.  Four of the charges pertained only to Mr. Wiegel and three of the charges pertained only to Mr. Knight.  The remaining charges pertained to both of them.  The trial before me only concerned Mr. Knight because the charges against Mr. Wiegel were dealt with in a separate proceeding before a different judge.  Hence, four counts in the Information; namely, Counts 3, 6, 18, and 19 were not in issue at the trial.  The remaining charges fell under the Real Estate Services Act, or the Securities Act of British Columbia. 

[8]           A numbered company, later called The Brook, was specifically created to develop a property located in the Delbrook area in North Vancouver.  The ultimate goal was to develop a residential building consisting of 24 condominiums.  In order to do so capital was required.  The complainants provided some of the capital needed.  The complainants involved in The Brook were: Teresa Lawson, Kevin Lawson, Lawson Holdings Trust, Russell Fleetham, Ozrat Kipnes, Elliott Kipnes, Elliot Blitzer, Susan Polano, Doug Trussler, Molly Trussler, John Borrell, Athena Balogh, Katie Schomaker, Callen Schomaker and Janet Rebel.

[9]           The charges against Mr. Knight arose out of business dealings the complainants had with Mr. Knight, Mr. Wiegel, and several companies with which they were associated in particular, Streamline Properties Inc. (numbered company 629883 B.C. Ltd.) (“Streamline”), a numbered company, 0772835 B.C. Ltd., also known as The Brook (“the numbered company” or The Brook”).  Mr. Knight had known Mr. Wiegel for many years.  They were friends and business associates.  They had worked together on many projects over the years.  Sometime between 2004 and 2006, the evidence was not clear about the specific date, Mr. Wiegel contacted Mr. Knight about a development project on the 2400 block West Broadway, in Vancouver.  That project did not materialize.  However, Mr. Knight and Mr. Wiegel began to explore other development opportunities.  Mr. Knight learned about a property in North Vancouver which was eventually purchased and became known as The Brook.

[10]        While The Brook was being developed, Mr. Knight and Mr. Wiegel were also involved in development of property near Commercial Drive in Vancouver, called the Deville Building Inc. (subsequently called the Local 1661 Building Inc.).  I refer to this development as the “Deville”.  The complainant involved in the Deville was Ms. Lohrasb.

[11]        Broadly speaking, the complainants in this case testified they, either individually or as part of a group, invested thousands of dollars toward the building of The Brook or in Ms. Lohrasb’s case the Deville.  They understood that for each $100,000 they invested, a bank would advance $300,000.  The combined total of $400,000 would be applied toward the cost of building The Brook condominiums or, in Ms. Lohrasb’s case, the Deville.  The complainants testified the money they invested was attached or allocated to a specific condominium unit chosen by each of them or the group of investors which I refer to as “the Kipnes group”.  In return the complainants would have certain rights related to the chosen condominium unit as well as an expectation of profit.  Once the construction of The Brook was completed, each of the complainants or the Kipnes group, could purchase the specific unit initially chosen at a discounted “wholesale” price.  They could do with it what they saw fit, including purchase the unit and occupy the condominium.  If they chose not to purchase the unit, they could allow Streamline to market and sell the condominium.  If they decided to sell the unit, they would receive the difference between the wholesale price and the retail sale price as a return on their investment.

[12]        Many of the complainants learned about this project from Mr. Knight or Mr. Wiegel.  Some of the complainants learned about it thorough friends or business associates.  At some point all the complainants met Mr. Knight.  They also attended various meetings sponsored by Streamline at which Mr. Knight and/or Mr. Wiegel made presentations or provided information about the projects Streamline was pursuing, in particular about The Brook.  They also received written materials and eventually documents which they signed.  The nature of the arrangements entered into between the complainants and Streamline, the numbered company/The Brook, and the Deville varied somewhat; for example, the initial amount of money each of them put into the project was not the same. 

[13]        The Brook was eventually built; however, that project encountered financial difficulties.  The complainants did not make a profit.  They did not buy the condominium units they thought had been earmarked for them.  The complainants lost part or all of the money they paid into the two projects.

[14]        In 2004, Mr. Knight had been ordered to cease trading in securities or engaging in investor relations activities pursuant to an order issued by the B.C. Securities Commission on April 5, 2004.  That order imposed a three-year prohibition on Mr. Knight beginning April 2004 and ending April 2007.  Further, effective June 15, 2006, Mr. Knight was banned indefinitely from providing real estate services under the Real Estate Services Act and the Real Estate Development Marketing Act.  This prohibition was pursuant to a consent order. Mr. Knight admitted that since January 6, 1995, he had not been registered under the Securities Act in any capacity.  Furthermore, he admitted he had never been licensed under the Real Estate Services Act or the previous legislation, the B.C. Real Estate Act.

[15]        Mr. Knight is 52 years old.  He was born and grew up in England.  After graduation from high school he moved to Canada and took a year of general studies at the University of Victoria.  He returned to England to complete the Institute of Bankers program at a college in Nottingham.  From 1984 to 1989 he attended Simon Fraser University to complete further studies.  He also completed a number of other courses and continued to take various professional financial licensing courses into the early 1990s.

[16]        Mr. Knight worked much of his adult life.  He worked as a trade credit officer, a credit analyst, a credit manager, a manager of customer sales and service, a general manager, a managing director for various financial institutions including Standard Chartered Bank, National Trust, Canada Trust, Interprovincial Insurance Services, First Continental Bancorp, and Aspen Financial Services.  He was also the general manager and general contractor for Active Mountain Resort, Streamline Properties Group and FLW Construction.  At the time of sentencing he was working for SML Print and Copy Center as an assistant manager.

[17]        Mr. Knight was married in the mid-1980s and has a child from that relationship.  He and his former wife separated in 2000.  His former wife had custody of their daughter.  Their daughter is now 18 years old and attends university.  Mr. Knight reported he has a positive relationship with his daughter and keeps in touch with her on a regular basis.  Since early 2013 he has been in a relationship with a woman who is fully aware of the matters before the court.

[18]        Mr. Knight was interviewed by a probation officer who prepared a pre-sentence report.  The probation officer noted in the report that Mr. Knight admits to the offences and accepts full responsibility for his actions.  Mr. Knight told the probation officer he understands he was a key participant in the events.  He maintained he did everything he could to reduce the extent of the impact on the persons involved.

[19]        Mr. Knight said all the money that was put into the projects by investors was used for the development of the projects.  He, Mr. Wiegel, and their families also put money into the development projects from their own resources.  Mr. Knight said he liquidated all his assets and borrowed a large sum of money from his mother in an attempt to assist in the recovery of the projects as the financial markets regained strength.

[20]        Mr. Knight told the probation officer that from the end of 2009 to late 2011 he worked on the projects continuously.  He did so without pay as he felt he needed to do everything he could both to assist with any chance of financial recovery and also to prevent any further financial decline of the projects.

[21]        Mr. Knight told the probation officer that since the commencement of these proceedings he has found it difficult to maintain steady employment.  He has used his skills in the construction industry to make a living.  He has only been able to obtain general labor level positions.  This work has been hard on him physically.

[22]        Mr. Knight noted that the criminal charges have cast a dark shadow over his life.  Information about the charges is readily available using the Internet.  Mr. Knight has struggled with health and anxiety issues.  He also said he has felt a tremendous loss of freedom.  He has been reporting regularly to a bail supervisor, initially on a weekly basis and later on a bi-monthly basis for the past two years.  Mr. Knight told the probation officer he was not able to attend his sister’s wedding in England last year or his best friend’s wedding the year before that.  More importantly, he experienced shame and strained relations with his family and friends.  Mr. Knight told the probation officer he sincerely regrets the decisions he made that negatively affected the lives of the many investors involved in the developments.

[23]        At the sentencing hearing his lawyer, Mr. Tarnow, provided additional information.  He said Mr. Knight stayed with The Brook project until the building was finished and the units were being sold on foreclosure.  He asserted Mr. Knight did so in order to do the best he could for the original investors.  Mr. Knight stayed with the project for over a year.  Mr. Tarnow said Mr. Knight stayed on the project without compensation.  He stayed to make things look better.  Mr. Tarnow submits Mr. Knight should be commended for that and not criticized for the ultimate losses that were all put at his feet.

[24]        Mr. Knight was in a common-law relationship during the time the project was in development.  That relationship came to an end.  He has now met someone else and is in a new relationship.  In September 2015 he learned about a possible opportunity in a print shop.  The print shop is called SML.  Mr. Knight had been a customer of the print shop and knew the owner who was looking to wind down his involvement in the business.  Mr. Knight has been operating the print shop since September 2015.  He has been financially responsible for the premises and the equipment leases.  He is making a small amount of money.  The future in that business looks good.

[25]        Before running the print shop Mr. Knight did carpentry and renovation work but was only able to make a subsistence living.  The print shop offers him an opportunity to make a living.  However, his counsel notes, if he is incarcerated there will be no one left to run the print shop business.  The inference I am asked to draw is that Mr. Knight would not be able to return to a viable business if he were incarcerated.

[26]        Mr. Knight also addressed the court at the sentencing hearing.  He said that construction and building was a way of life in his household.  He also said Mr. Wiegel approached him to become involved in the Streamline Group.  It was an exciting proposition.  At the time the market was extremely buoyant.  Mr. Knight said he and Mr. Wiegel had been friends for over 25 years.  Mr. Wiegel knew everything about him, including the existence of the orders issued under the Securities Act and the Real Estate Services Act and the facts relating to those orders.

[27]        Mr. Knight said in 2008 – 2009 there were a number of challenges relating to the real estate market and financing restrictions.  The company had taken on three substantial projects.  Mr. Knight said a significant and devastating event was when Citizens Bank foreclosed on the project.  At that point, he watched Mr. Wiegel wither in his capacity as president.

[28]        Mr. Knight had brought his family into the project as well as over 100 investors.  He felt he had to do everything he could to carry on with the project and hope there would be a way through.  He said a number of investors saw it that way too, given the cyclical nature of the real estate market.  Mr. Knight said his family lent him money to stay involved in the project.  His sister believed in his commitment to liquidate all his assets for the purpose of sticking behind something to which he had been committed.

[29]        Mr. Knight acknowledged the failure of the project had an impact on a number of investors.  He pointed out he has been negatively affected as well.  He said going through the process has been devastating for him.  His ability to function has been challenged in a number of ways, for example, reporting to probation services can take anywhere from one to three hours and doing construction work was physically difficult given his age and his average health.

[30]        Mr. Knight explained he now has the opportunity to take over a print shop he has been dealing with for about 11 years.  The owner is getting ready to retire.  The owner wanted to go overseas but could not because he had obligations to clients.  The owner gave Mr. Knight the opportunity to manage the business, on a temporary basis, to see if he could take care of the business obligations.  Mr. Knight sees this as an opportunity to work in a business that could sustain him and several employees.  This would provide him a source of income and also assist him to make restitution.  He said a key part of actions speaking louder than words is that from the time The Brook got into difficulties his commitment did not waver.  He stayed on for the interests of everyone involved.  His single regret was the impact, pain and stress he caused those involved in this process.

[31]        Mr. Knight filed four letters of support, one from his sister, one from a friend who has known him for 12 years and has more recently employed him to do some work for her, the other from another friend who has known him for eight years, and one from an employee who works at the SML print shop.

[32]        His sister wrote about the effect the court proceedings have had on Mr. Knight.  She wrote he has suffered greatly from the stress caused by the court case.  His sister also wrote that his new partner is a very positive force in Mr. Knight’s life.  Mr. Knight has changed enormously over the last five years.

[33]        One of his friends wrote that Mr. Knight is a mindful, considerate, thoughtful and sincere person.  He has strong values, has a great work ethic and goes out of his way to help others.  The other friend wrote that Mr. Knight has strong integrity and community values.  Although the stress and struggles Mr. Knight faced during this lengthy legal proceeding have been hard on him, he has continued working through all parts of his life in a thoughtful and considerate way.

[34]        The SML employee wrote that Mr. Knight is thoughtful, kind and a very genuine person not only to staff but also to clients.

[35]        Mr. Fleetham, an investor in The Brook, wrote that Mr. Knight’s offences significantly altered and affected the course of his life both financially and emotionally.  He lost $89,675 on his investment in the Brook.  This was his life savings at the time.  Mr. Fleetham said it has taken him 10 years to recover financially.  This situation has strained his relationship with his wife and family and limited his ability to purchase a home and invest in other financial opportunities.  It has drastically reduced his standard of living.  It has also eroded Mr. Fleetham’s confidence in himself for failing to realize the gravity of the situation.  Moreover, Mr. Fleetham wrote, he has endured years of fear and threats in relation to being sued and bankrupted by the parties who took over the development.  Mr. Fleetham wrote he is a tradesperson and every dollar he has ever earned came from hard work and responsible living.  He feels he was victimized by Mr. Knight.

[36]        Ms. Kipnes wrote she and her husband invested $22,500 in The Brook as part of a group of persons who pooled their resources.  That amount may not seem a lot to some but it was the largest investment she and her husband ever made.  She said there was a lot she did not anticipate because she entered into the investment based on trust.  She was not a savvy person, but she was someone who trusted Mr. Knight.  Ms. Kipnes wrote some of her colleagues also trusted her when they invested in the development.  All their hard work has now been lost.

[37]        Ms. Kipnes wrote that her involvement in the development became a nightmare and an emotional roller coaster.  She feels sick every time she reads a document relating to this matter.  There is a civil suit involving the project and she is concerned about losing her home and assets.  Ms. Kipnes wrote about the various emotions she has felt in relation to her involvement in the project.  What was initially excitement, trust and joy quickly turned into confusion, doubt, shock and disbelief, anger, fear, humiliation, embarrassment, and despair.

[38]        Mr. Blitzer was part of what I have called the Kipnes group.  Like Ms. Kipnes he invested $22,500 in The Brook project.  That money came from an inheritance he received from his mother after she passed away from cancer.  Mr. Blitzer wrote that the experience has been a financial and emotional nightmare for him.  First, he told a friend about the project.  His friend invested based on Mr. Blitzer’s recommendation.  His friend never got his money back and had to declare bankruptcy.  As a result, Mr. Blitzer lost a close friend.  Second, Mr. Blitzer was unable to sleep and was constantly thinking about how he could get out of the mess in which he found himself.  Third, he was unable to concentrate at work because of his emotional anxiety about the project.  This resulted in a lack of focus and losing money that he could have earned had he been able to focus on his business.  In particular, he lost a window of opportunity to expand his business to Australia.  Fourth, Mr. Blitzer wrote, the stress and worry about the development has strained his relationship with his wife.  Fifth, he is being sued by Interior Equities and thus feels he is being re-victimized.  He wrote because of his $22,500 investment he is now living month-to-month and barely getting by.

[39]        Ms. Polano wrote that her involvement in the project and what followed from it has changed the way she sees everything.  As a single woman she is now restricted in everything that requires financial resources.  This includes purchasing a home which is what she had hoped to do with the money she invested in the project.  The situation has caused stress in the family.  She has been sad and depressed.  She also feels guilty because she took a chance on an investment with people she knew and trusted, but, regrettably, it did not work out.  Ms. Polano wrote she has experienced stress, fear, worry, angst, nervous tension, and anxiety.  The high stress and lack of sleep she has experienced caused blinding headaches which resulted in her not being able to work for long periods of time.  Financially she has suffered significantly.  The money she put into the investment was the bulk of her savings.  Given her age, she does not have a lot of time or resources to recoup this money.  Additionally, the stress she has experienced as a result of issues relating to the project has caused further financial hardship relating to payments for counseling and medications.

[40]        Ms. Balogh and Mr. Borrell wrote they did not know where to begin to explain the emotional, physical, and financial toll Mr. Knight’s offences had on their entire family.  When they first got together they literally had nothing.  They worked hard for seven years and bought nothing but necessities.  They lived in an affordable tiny rental apartment.  They did not have a wedding so they could save for a home.  They had both been on the verge of homelessness when growing up, so they were determined not to be in that position again.  Accordingly, they worked round-the-clock and were successful in putting together money for “a secure nest egg”.  Unfortunately, they lost all their savings.

[41]        They had just bought their first home but were unable to keep it because Mr. Borrell lost his job.  Unfortunately, the savings that could have helped them weather the financial difficulties were gone.  They blamed themselves and Mr. Knight and Mr. Wiegel but, regrettably, some friends and family blamed them too.  They felt humiliated and ashamed.  Eventually they could no longer afford their home and had to sell it.  This did not happen all at once but over a few years.

[42]        In addition to losing their money they also lost their health.  Ms. Balogh was diagnosed with a serious illness and with major depression and generalized anxiety disorder.  She wrote she suffered frequent and debilitating panic attacks, social anxiety and depression.  The physical and emotional pain was intolerable.  Mr. Balogh also became depressed and had to seek professional attention.  

[43]        They cashed in their RRSPs in order to get by and to obtain the professional assistance they needed.  The effect of their loss was not limited to them but also to their family.  All of this was compounded by the fact they had to sell their home in a down market at a substantial loss.  They were denied disability insurance and ended up receiving social assistance.  Ms. Balogh and Mr. Borrell provided a much more detailed history of their unfortunate situation which I have considered but not summarized.  All of this added significantly to the stress and distress they experienced.

[44]        They eventually moved out of British Columbia.  Ms. Balogh’s mother moved with them.  She is assisting them both emotionally and financially.  Ms. Balogh is still not working; however, Mr. Borrell is back at work.  Nevertheless, they are now in a position where their credit has been destroyed and their debts are at the point where they are unlikely to qualify, even in the foreseeable future, to own a home, have a credit card, or purchase a vehicle.

[45]        Ms. Rebel wrote that she grew up North Vancouver and was familiar with the Delbrook area and in particular the location where The Brook was to be built.  She was mesmerized by Mr. Knight’s characterization of this once-in-a-lifetime opportunity.  Ms. Rebel had recently separated and had responsibility for two children.  It seemed to her The Brook opportunity had come along at an optimal time.  In retrospect she notes she could never have imagined the financial hardship she would experience or the risk of financial ruin.  She is a single mother with children who depend on her.  Now she must face the prospect that her children will not have the financial support she had worked so hard to provide.  Ms. Rebel also expressed concern that the roof they now have over their heads may also be gone.  Presumably this is a reference to the civil lawsuit.  Ms. Rebel wrote her health is showing the effects of stress caused by placing her trust in Mr. Knight.  At this juncture, any financial endeavor she may have considered, including post-secondary education for her children and her own retirement, is severely compromised.  Her confidence is gone and her positive and motivated outlook has changed to one of stress and financial worry.

[46]         Ms. Lohrasb wrote that before investing in the Deville she had left a difficult relationship and had taken nothing with her.  The $50,000 she invested in the Deville was every penny she had worked hard to save since 1999.  Ms. Lohrasb is self-employed so she had nothing to fall back on when her investment in the development did not turn out as planned.  She suffered from fear and anxiety.  She has worked hard since then, 12 to 15 hours a day, every day, but has not been able to build up her savings.  She does not buy anything or invest because she does not trust anyone.  However, more troubling is the fact that she does not even trust herself.  The worst part of this experience is that she fought hard for years to leave an abusive relationship and stop being a victim; however, Mr. Knight has made her a victim all over again.

[47]        Ms. Lawson said each time she tried to approach writing a victim impact statement she fell apart.  It did not occur to her until the day of the sentencing hearing that the reason it was so difficult stemmed from being part of something that had the term “victim” attached to it.  Just thinking about being a victim left her shaking, let alone having to write it down.

[48]        Ms. Lawson said she has lost a great deal.  She lost her husband, her home, her career in equipment leasing which was the only career she had ever known, her credibility with family, friends, and business associates, the support of her family, her business contacts, and her ability to find employment.  She now finds herself in the position of having to file for bankruptcy.  She has approximately $150,000 of business-related debt.

[49]        Ms. Lawson said she refuses to accept she or the other investors are victims.  She can only do that by believing in the court’s ability to see that justice is done.  Her belief that justice will prevail allows her to continue and try to change the lives of those who have been victimized and to have an impact on the consumer protection system.

[50]        The Crown submits an appropriate sentence in this case is 18 months imprisonment.  The Crown relies on a number of cases, some of which are summarized below, which indicate that the range of sentence runs from suspended sentence to imprisonment for lengthy periods.  The Crown points to the circumstances of the offences and in particular the fact Mr. Knight had previous dealings with regulatory authorities.  Furthermore, at the time the offences were committed, there were orders prohibiting Mr. Knight from providing real estate services, trading in securities, or engaging in investor relations.  The Crown points out that those orders were imposed in 2004 and 2006.  However, the Crown notes that before 2006 was out Mr. Knight had breached both orders by his involvement in Streamline and the Deville.

[51]        The Crown submits it is important to look at the facts found during the trial.  On paper it appears that Mr. Wiegel was running the show.  However, the Crown submits, the evidence at trial clearly indicates Mr. Knight was the one running the show and was not a mere employee or simply a general manager.

[52]        The Crown submits although this is a first offence for Mr. Knight the court ought to take into account that his actions were not inadvertent.  Instead, the Crown submits The Brook was deliberately set up in a manner that would create an air of plausible deniability.  The Crown submits the structure of The Brook was a calculated attempt to evade the ambit of the Securities Act.

[53]        The Crown submits there are few, if any, mitigating circumstances.  It acknowledges Mr. Knight has no criminal record but submits that fact is undermined by the previous administrative sanctions imposed for carrying out similar activities.  Those activities resulted in a cease and desist being order imposed pursuant to the Securities Act and the Real Estate Services Act.

[54]        The Crown urges this court not to accept at face value Mr. Knight’s assertions that he takes full responsibility and is remorseful for what he did.  The Crown urges me to consider the history of these proceedings and the testimony at trial.  The Crown argues Mr. Knight’s actions speak louder than his words.  He has made no efforts to contact the Securities Commission to deal with the disgorgement order it made in February 2015.

[55]        Mr. Knight submits an appropriate sentence in his case is a suspended sentence followed by a period of probation.  He submits there are two reasons for this.  First, he has an extremely positive pre-sentence report which indicates he is remorseful and shows there are prospects for his rehabilitation.  Mr. Knight submits he has shown he can be a productive member of society.  He took whatever work he could, including manual work, in the past and is now running a print shop, which may well be his only hope of eventually providing restitution.  Second, his sentence should be the same as Mr. Wiegel who was given a suspended sentence by Judge St. Pierre.

[56]        Mr. Knight relies on the parity principle.  In this regard he relies on R. v. Adam, 2007 BCSC 765.  In that case Mr. Justice Romilly said the cases indicate quite clearly that sentences imposed on co-accused should not be disparate.  He also said that minimizing sentence disparity is an important factor to take into account in crafting a fit sentence.  In the case before Mr. Justice Romilly the person being sentenced was not a co-accused but the court took into account that the offences charged were basically the same.

[57]        Relying on R. v. Voong, 2015 BCCA 285, Mr. Knight submits a suspended sentence has been found to have a deterrent effect.  He argues there are exceptional circumstances in his case that warrant the imposition of a suspended sentence.  Mr. Knight also relies on several other cases, R. v. Lo, 2015 BCSC 1821, R. v. Orr, 2015 BCPC 206, and R. v. Madison, 2015 BCPC 323.  Mr. Knight points to the letters filed during the sentencing hearing which show he has support in the community.  He also points to the fact he has a very positive pre-sentence report.

[58]        The penalties for offences under the Real Estate Services Act are set out in s.119. In particular, s. 119 (2) provides that an individual who commits an offence under s. 118, which includes contravening s. 3, the requirement for a license, and contravening s. 118 (1) (b), failing to comply with an order of the Real Estate Council, is liable on a first conviction to a fine of not more than $50,000, or to imprisonment for not more than two years, or to both.

[59]        The penalties for offences under the Securities Act are addressed in s.155 of that Act which deals with enforcement.  Section 155 (2) provides that a person who commits an offence under the Act is liable to a fine of not more than $3 million, or to imprisonment for not more than three years, or both.

[60]        Various decisions dealing with securities legislation have addressed the importance of the regulatory framework imposed by that type of legislation.

[61]        In R. v. Pezim, 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557, the Supreme Court of Canada addressed the nature of the statute and noted the following:

[62]        Judges in other court cases have made the following observations about securities legislation:

[63]        In R. v. Kelly (September 24, 1997), Vancouver 92124C 2 (BC Prov.Ct.) Mr. and Mrs. Kelly were convicted of 12 counts relating to violations of the Securities Act.  Judge Arnold sentenced Mr. Kelly to 12 months imprisonment on two counts of unlawfully trading in securities in violation of a cease trade order issued by the Securities Commission.  Mrs. Kelly was sentenced to six months imprisonment on the same counts.  The sentencing judge concluded specific deterrence was the most important principle in the sentencing before her; also important was the principle of general deterrence.  The sentencing judge also considered the rehabilitation of the two offenders.  She noted that, in the context of the case before her, there was a need to show people who want to go to the public for money without complying with the Securities Act that penalties might be much more severe than simply paying fines and that there is a very real chance such persons may go to jail.

[64]        In the Kelly case, defence counsel argued that a fine was the appropriate disposition for Mr. and Mrs. Kelly.  The sentencing judge disagreed.  She noted that fining the Kelly’s would simply make their flagrant violation of the requirements of the Securities Act and regulations a cost of doing business.

[65]        In Boyle, the sentencing judge concluded the overarching sentencing principle that applies in imposing sentence for a breach of the Securities Act is that of general deterrence which must be added to other factors such as remorse, restitution and other relevant sentencing principles.  The judge also considered other relevant factors such as an early guilty plea, remorse, and restitution.  He found there was no guilty plea but a finding of guilt after a lengthy trial.  The conduct of the two accused did not evidence remorse; in particular the evidence of two of them indicated they sought to foist off onto others culpability for their respective misdeeds.  He also noted there had been no restitution, much less any effort at restitution.  The judge imposed a sentence of 30 months on one accused, 26 months on another accused, and 6 months on the third accused.

[66]        In R. v. Edwardson, 2004 BCPC 312, Judge Sinclair noted the purpose of the Securities Act, in broad terms, is to protect investors from unfair, improper or fraudulent practices.  He cited R. v. Bowman (1948), 1948 CanLII 251 (ON CJ), 92 CCC 380, for the proposition that one of the principal purposes of the Securities Act is to protect the “innocent abroad” in the investment world from the goldbricker or the rapacious shark that such game easily attract: see para. 3 of Edwardson.

[67]        The principles of sentence which Judge Sinclair considered to be of utmost importance were deterrence and denunciation.  He imposed a sentence of 12 months, concurrent, for the offences of failing to register and failing to file a prospectus.

[68]        In R. v. Edwardson, (October 13, 2004) Kelowna 55014-2 (B.C.S.C.) Mr. Justice Brooke affirmed the 12 month sentence imposed by the trial judge.  In doing so he noted the Securities Act creates quasi-criminal regulatory offences.

[69]        In Manitoba (Securities Commission) v. Bennett, 2007 MBPC 22, the court noted it was of utmost importance to be guided by the principles of general deterrence and protection of the public.  The court sentenced the accused to a term of 6 months in jail, concurrent on four counts of trading or attempting to trade a security without being duly registered, and four counts of trading without the benefit of a prospectus contrary to the Manitoba Securities Act.  In doing so, the court commented that, after considering applicable precedents, a jail sentence was required to reflect the required denunciation and deterrence.  A fine and/or probation in the circumstances would be inadequate punishment.

[70]        In R. v. Dix, (September 19, 2008) Victoria 139753-1 (BC Prov. Ct.), Judge Hubbard cited the Pezim case for the proposition that the primary goal of securities legislation is protection of the investing public.  He also considered the principles of deterrence and denunciation which, in the case before him, required a prison sentence.  In Dix after the first day of trial the accused pled guilty to one count of unlawfully trading in a security without being registered and one count of engaging in investor relations activities while prohibited from doing so by an order of the Securities Commission.  In imposing a sentence of 12 months imprisonment on the trading in securities charge, Judge Hubbard considered as a major aggravating factor that the accused had failed to comply with an order of the securities commission.  He further imposed a six-month concurrent sentence on the engaging in investor relations charge.

[71]        In R. v. Wiegel, 2014 BCPC 54 (CanLII), 2014 BCPC 0054, Judge St. Pierre sentenced Jeffrey Wiegel, who was the co-accused on some charges but his case proceeded separately.  Mr. Wiegel pled guilty to three counts, namely, unlawfully distributing a security to various investors without first filing a preliminary prospectus, unlawfully trading in a security, a shareholders agreement, to Ms. Schomaker, and failing to provide disclosure statements with respect to a development property called The Brook.  Judge St. Pierre noted these were regulatory offences, albeit serious ones, which resulted in a great deal of emotional and financial stress for many investors.  He noted this was a development scheme.  He was told the architect of the scheme was Mr. Knight.

[72]        In Wiegel, the Crown asked for a three month jail sentence under the Offence Act and a period of probation.  The defence asked for a suspended sentence with probation.  Judge St. Pierre noted that general deterrence and denunciation were the primary applicable principles of sentencing in this particular case.  He also noted the sentences ranged from fines to jail sentences.  He said that, in defining the range, the issue came down to the moral culpability of the offender.  It is moral culpability which dictates the seriousness of the penalty imposed by the courts.

[73]        Judge St. Pierre suspended the passing of sentence and placed Mr. Wiegel on probation for two years.  He said arriving at a fit sentence was really dictated by the moral culpability of Mr. Wiegel.  In determining that moral culpability Judge St. Pierre took the following circumstances into account:

[74]        In R. v. Edgar, 2000 BCPC 215, Judge Bagnall sentenced an accused who had been found guilty of 23 charges under the Securities Act which comprised of trading in securities without being registered under the Act, distributing those securities without having properly filed a prospectus, and effecting a trade in securities by offering to refund the purchase price of shares.  He was sentenced to four months in jail.  In imposing that sentence Judge Bagnall found Mr. Edgar’s conduct was not the result of mere negligence, however, she was satisfied his unlawful acts did not have a predatory tinge.  She placed Mr. Edgar towards the less culpable end of the range of behavior, namely, designedly evasive.

[75]        In R. v. Grossman, 2013 ONCJ 444, the accused pled guilty to three offences under the Securities Act.  He traded in securities without being registered in the face of two cease trading orders from the Ontario securities commission.  The sentencing judge was of the view it was appropriate to consider all of the factors set out in s.718 of the Criminal Code, including, deterrence, rehabilitation and other principles.  He concluded specific and general deterrence and denunciation were paramount considerations.  An important factor in his consideration of an appropriate sentence was that the accused had not pled guilty to any form of fraudulent activity.  The court imposed a sentence of 6 months concurrent for the three offences before the court.  He made the sentence consecutive to a 57 month sentence the accused was serving at the time he was convicted.  In arriving at a sentence of 6 months the court considered the totality principle and concluded that if the defendant were being sentenced for all of his offences together he would have reduced the sentence for the offences before the court.  He realized that he could not review the sentences already imposed.  However, he could consider the sentences in a general way in arriving at a fit sentence on the offences before the court.  The judge said taking those factors into account he would sentence the offender at the lower end of the scale.

[76]        After considering the case authorities provided during this sentencing hearing, I am satisfied that specific and general deterrence, denunciation, and protection of the public ought to be given paramount consideration in the sentencing of Mr. Knight.  Rehabilitation is obviously a principle that ought to be considered, however, in the circumstances of this case it is of secondary importance to the above noted sentencing principles.  Sentencing is an individualized process; accordingly, I must focus on the particular facts of this case and on the particular circumstances of Mr. Knight.

[77]        The mitigating factors in this case are the following:

[78]        The aggravating factors are:

[79]        Mr. Knight forcefully argued that the principle of parity should be taken into account in arriving at an appropriate sentence in his case.  Accordingly, he argued, given the sentence imposed on Mr. Wiegel by Judge St. Pierre, a suspended sentence with a period of probation ought to be imposed on Mr. Knight as well.  Therefore, in considering the question of what is a proper and fit sentence in this case I have considered and will now address the principle of parity.  In doing so, I have kept in mind that sentencing is an inexact science.  It involves a blend of many factors with aims that often conflict and competing interests that cannot always be harmonized; see R. v. Chisholm (1985), 1985 CanLII 3587 (NS CA), 18 CCC (3d) 518, R. v. Nakamura, 2012 BCSC 327 (CanLII), 2012 BC SC 327, R. v. Do, 2007 BCCA 18.

[80]        In R v. Christie, 2004 ABCA 287 (quoted with approval in several cases including R. v. Vo, 2009 BCCA 471 and R. v. Violette, 2009 BCSC 1557)  the court stated:

[81]        In R. v. Bosco, 2016 BCCA 55, our Court of Appeal addressed the issue of parity.  The court noted that this principle encourages consistency between sentencing decisions by providing that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.  The court also noted that the case law establishes general ranges for particular offences which serve as guidelines for sentencing judges, but not as hard and fast rules for mechanistic application; see Bosco at paragraph 34.  Furthermore, in R. v. Olyinyk, 2010 BCCA 249, the court noted that the principle of parity does not preclude disparity where warranted by the circumstances, because the principle of proportionality must also be applied.

[82]        In Mr. Knight’s case I have considered whether a suspended sentence, which is the sentence imposed on Mr. Wiegel by Judge St. Pierre, is appropriate.  I have concluded, based on Judge St. Pierre’s reasons for sentence and the evidence I heard during Mr. Knight’s trial, that the circumstances of Mr. Knight and Mr. Wiegel are sufficiently different to warrant different sentences.

[83]        My findings regarding Mr. Knight’s involvement in The Brook and the Deville project are set out in detail in my reasons for judgment.  In summary, I found Mr. Knight provided trading services which included advising on the appropriate price for real estate, making representations about the real estate, finding a party to acquire the real estate, showing the real estate, and negotiating the price of the real estate or the terms of the trade in real estate.  I found Mr. Knight actively participated in numerous and varied activities regarding The Brook and the Deville in the course of his dealings with the complainants.

[84]        I also found that Mr. Knight engaged in investor relations activities.  In particular I found that during the period of the Securities Act prohibition covered by Count 4 he was involved in a plethora of activities including group meetings and speaking one-on-one with complainants and in particular with Ms. Lawson, Ms. Kipnes, Ms. Schomaker, and Mr. Fleetham.

[85]        Mr. Knight also acted as an investment advisor.  He provided information to complainants that went well beyond mere factual comments concerning The Brook or the Deville.  The information he provided and statements he made contained opinions about the merits of the investment in The Brook and the Deville.  The gist of some of his comments was: this was a great investment, a once-in-a-lifetime opportunity, and one that would result in significant profit in a short time.

[86]        At trial Mr. Knight submitted his role in the company was simply as a development manager or general manager.  He said Mr. Wiegel, in his role as the sole director was responsible for distributing all legal documents.  Accordingly, the issuance of securities fell to Mr. Wiegel.  I concluded, in respect to Count 9 trading in a security to the Kipnes group, that Mr. Knight was a key proponent of The Brook development.  He was actively involved, both directly and indirectly, in promoting The Brook.  Mr. Knight was intimately involved in all phases of its operation and not just as a manager of the physical construction of The Brook building.  In particular I found Mr. Knight tried to minimize his involvement and characterize it as secondary to that of Mr. Wiegel and others.  I also noted that his testimony, when stripped of his circumlocutions, elaborations, and evasions, established he was “the hub” of the business and the “captain of the ship”.

[87]        In the circumstances of this case, bearing in mind all the relevant principles of sentencing in particular denunciation, general deterrence and protection of the public, I have concluded that a period of incarceration is appropriate.  In arriving at this conclusion I have taken into account that:  a) rehabilitation of Mr. Knight is a laudable objective and b) imposing a suspended sentence would allow him to continue working and thus pave the way for Mr. Knight to eventually make restitution.  However, in the context of this case, a suspended sentence is not an appropriate disposition.

[88]        To paraphrase Judge Arnold in Kelly, in light of Mr. Knight’s moral blameworthiness and his failure to abide by the requirements of the Securities Act and the Real Estate Services Act, a non-custodial sentence would be tantamount to tacit approval of the egregious violations of the Securities Act and the Real Estate Services Act.  It has been noted in the case law that regulatory offences, are designed to protect the public.  Moreover, it has also been recognized that securities legislation, in part, ensures public confidence in the system.  Accordingly, as noted in Da Silva, when regulatory offenders are sentenced the need for penalties that strongly encourage statutory compliance is of particular importance.  In the circumstances of this case, which are set out in my detailed reasons for judgment, I am satisfied a period of incarceration is needed to denounce Mr. Knight’s conduct, to deter him and others from committing similar regulatory offences and to protect the public.

[89]        In R. v. Derion, 2013 BCPC 381, I considered the issue of concurrent versus consecutive sentences when sentencing a person for multiple offences as follows:

[90]        On Count 1, failing to comply with an order of the Superintendent of Real Estate by providing real estate services to the complainants from October 1, 2006, to May 19, 2011, I impose a period of incarceration of 12 months.

[91]        On Count 2, providing real estate services to the complainants from October 1, 2006, to May 19, 2011, without being licensed, I impose a period of incarceration of 12 months concurrent to Count 1. 

[92]        On Count 4, engaging in investor relations contrary to an order made under s. 161 of the Securities Act 12 months concurrent to Counts 1 and 2.

[93]        On Count 5, acting as an investment advisor without being registered under the Securities Act, I impose a period of incarceration of 12 months concurrent to Counts 1, 2 and 4.

[94]        On Counts 7, 9, 11, and 14, trading in a security to Ms. Lawson, to members of the Kipnes group, to Ms. Balogh, and to Ms. Schomaker, and on Counts 8, 10, 12, and 15, unlawfully distributing securities without filing a prospectus to Ms. Lawson, to Ms. Balogh, to members of the Kipnes group, and to Ms. Schomaker, I impose a period of incarceration of 10 months on each count, concurrent each to the other, and also concurrent to Counts 1, 2, 3, and 5.  Accordingly, the effective sentence for Mr. Knight is a period of incarceration of 12 months.  The only matters that remain to be addressed, if applicable, are: a) credit for time served, if any; b) any ancillary orders sought; and c) the victim fine surcharge.