No bar on conditional sentence in tax evasion cases

R. v. Klundert, 2011 ONCA 646 holds a conditional sentence may be available in a tax evasion matter:

[19]         First, the trial judge’s strong reliance – arguably his sole reliance – on the Onkar Travels case to determine that a conditional sentence was inappropriate was misplaced. 

[20]         In Onkar Travels, the individual defendant and his company, Onkar Travels Inc., collected Goods and Services Tax from various airlines and tour operators, which they failed to remit to the government.  Instead, the individual defendant made false entries in the books and records of Onkar Travels Inc. and false statements in the tax returns filed with Revenue Canada to cover up his actions.  The sentencing judge found that a conditional sentence would be an insufficient deterrent in the circumstances of this “serious, large-scale fraud” and imposed prison sentence of two years less a day.      

[21]         The trial judge seems to interpret a rule from Onkar Travels that he appears to suggest is absolute.  That is, a conditional sentence is not appropriate in tax evasion cases.  There is no such absolute rule.  As was demonstrated to the trial judge, there are tax evasion cases in which conditional sentences have been imposed. 

[22]         Further, this case is simply not comparable to Onkar Travels, just as the trial judge found.  Indeed, he characterized the case this way: “By any assessment this case presented unique facts.  Defence counsel is correct that this behaviour was not, on the face of it, as deceitful as the ‘average evasion case’.”