Jack Klundert, an optometrist from Windsor, Ontario, who had earlier been found not guilty by juries in two separate trials for having openly refused to satisfy the provisions of the Income Tax Act, was convicted in 2010 by Mr. Justice Paterson of the Ontario Superior Court of Justice. In 2011, Dr. Klundert appealed against both his conviction and one-year prison term.
Ontario’s Court of Appeal rejected Dr. Klundert’s appeal against conviction, paying much more respect to the jury that convicted Dr. Klundert than to the first two that acquitted him.
In connection with the appeal against sentence, however, the Court of Appeal pointed out a number of serious mistakes made by the trial judge, including the latter’s disregard of the absence of any fraud on Dr. Klundert’s part:
“[23] He went on to hold that, while deceit or fraud may be an aggravating factor, the absence of such features does not create a mitigating factor. While that may be an acceptable general rule of sentencing, the absence of deceit or fraud can nevertheless be a factor in deciding whether or not a conditional sentence is warranted. To the extent the trial judge did consider the appellant’s low level of deceit, if any, and lack of fraud, it was not fairly emphasized in his reasons and amounts to error.”
Moreover, Dr. Klundert was discovered to be a citizen that respected the law, in the sense that he did not demonstrate disdain towards the law in general, but only to a particular one:
“[27] The appellant’s history actually shows that in virtually every other respect he was a law abiding citizen. Indeed, he was a first time offender and should have been sentenced as such. His disagreement with the specific law for which he was charged and convicted cannot sufficiently underpin a conclusion that the appellant had a general lack of respect for the rule of law. This was not a proper aggravating factor.”
In any event, the Court of Appeal corrected the erroneous assertion made by the trial judge that the lengthy procedure was “self-inflicted” upon Dr. Klundert since, in truth, it was the Crown that appealed twice before:
“[32] Thus, it was the Crown exercising its right of appeal after the first two trials in which the appellant was acquitted that resulted in the long proceedings and the anxiety they imposed on the appellant. These factors were not at all “self-imposed”. It was an error for the trial judge not to give at least some consideration to the length of the process and its attendant anxiety on the appellant as a factor to consider on sentencing.”
For this reason, the Court of Appeal quashed Justice Patterson’s order of one year incarceration and imposed a conditional sentence to be served in the community.
Notwithstanding Dr. Klundert’s conviction, his case is one which recognizes that incarceration would be inappropriate for a non-violent first-time offender who was acting as a form of protest against an unjust law.
Decided by the Ontario Court of Appeal on October 17, 2011.
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