R. v. Gujral

Court File and Parties

Court File No.: Information #5539 Date: November 29, 2019 Ontario Court of Justice – Brampton, Ontario

Between: Chartered Professional Accountants of Ontario (Prosecutor)

and

Joginder Singh Gujral (Defendant)

Before: Quon J.P.

Counsel:

• Andrew Faith and Madeline Brown, Polley Faith LLP, for the Chartered Professional Accountants of Ontario
• Joginder Singh Gujral, unrepresented

Heard: September 11, 2019 Judgment Released: November 29, 2019

Reasons for Judgment and Rulings on Charter Applications

1. INTRODUCTION

1Like many foreign-trained professionals who emigrate to Canada, Joginder Singh Gujral ("the defendant"), a Chartered Accountant from India with several professional accounting designations, had wanted to live the Canadian dream and continue his profession in Canada. However, to be able to continue and be legally able to practice as a Chartered Accountant or professional accountant in Ontario, the defendant had been required to have his work experience and credentials assessed, and if not exempted, then he had been required to enroll in and complete classes as a professional accounting student and pass the qualification exam set by the Chartered Professional Accountants of Ontario (formerly the Institute of Chartered Accountants of Ontario), the governing and licensing body of Chartered Accountants in Ontario at that time, before he would be legally authorized to practice as a Chartered Accountant or as a professional accountant in Ontario. Although there is an exemption from having to enroll in classes as a student or from having to write the qualification exam, the defendant was not exempted by the Chartered Professional Accountants of Ontario ("CPA Ontario") and had been required to enroll as a student with CPA Ontario and take certain courses, and to also write the qualification exam known as the "Common Final Exam". The purpose in requiring foreign-trained professionals in such fields as medicine, law, dentistry, architecture, engineering, accounting and other trades, to undergo accreditation of their experience and education and to complete courses and pass licensing exams before they can continue in their profession or trade in Ontario, is to ensure that they have a minimum level of education, competence, and experience in their respective fields before they can practice in their chosen fields, which is necessary for the safety and protection of the Canadian public.

2At the time the defendant was enrolled as a student and studying for his qualification exam, there were 3 governing bodies for the 3 different professional accounting designations in Ontario of Certified Management Accountant (or Registered Industrial Accountant), Chartered Accountant, and Certified General Accountant. The three governing accounting bodies in Ontario were known as the "Institute of Chartered Accountants of Ontario", which governed and regulated Chartered Accountants in Ontario; the "Certified Management Accountants of Ontario", which governed and regulated Certified Management Accountants and Registered Industrial Accountants in Ontario, and the "Association of Certified General Accountants of Ontario", which governed and regulated Certified General Accountants. There were also 3 Ontario statutes at that time which governed each of those 3 professional accounting designations: the Certified General Accountants Act, 2010, S.O. 2010, c. 6, Sched. A.; the Certified Management Accountants Act, 2010, S.O. 2010, c. 6, Sched. B; and the Chartered Accountants of Ontario Act, 2010, S.O. 2010, c. 6, Sched. C. However, sometime in 2014 the 3 professional accounting designations and the 3 governing accounting bodies in Ontario were amalgamated under one governing professional accounting body, known as the Chartered Professional Accountants of Ontario ("CPA Ontario"), and on May 17, 2017, the 3 governing statutes were repealed on May 17, 2017, and a new statute, the Chartered Professional Accountants of Ontario Act, 2017, S.O. 2017, c. 8, Sched. 3., came into force to regulate all professional accountants in Ontario.

3But more importantly, while being a student preparing for the qualifying exam and licensure, and before being accepted as a member of CPA Ontario, the governing professional accounting body in Ontario, the defendant was prohibited by provincial legislation from using publicly in Ontario his foreign professional accounting designations and their corresponding initials or descriptions that he had obtained from India and the United States, under the three governing professional accounting statues in Ontario that were applicable to the defendant (the Certified Management Accountants Act, 2010, the Chartered Accountants Act, 2010, and the Chartered Professional Accountants of Ontario Act, 2017), until he became a member of CPA Ontario or one of the governing professional accounting bodies in Ontario. In addition, the defendant was not permitted to practice as, or to publicly to hold himself out as, or imply that he was a Chartered Accountant, a Certified Management, or a Chartered Professional Accountant in Ontario, until such time as he became a member of CPA Ontario or one of the governing professional accounting bodies in Ontario.

2. BACKGROUND

(a) Amalgamation of the 3 Statutes Governing Accounting Professionals in Ontario

18Prior to 2017, there were three statutes that governed different categories of accounting professionals in Ontario. For Chartered Accountants in Ontario they were regulated and licenced under the Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sched. C by the Institute of Chartered Accountants of Ontario. For Certified Management Accountants in Ontario, they were regulated and licenced under the Certified Management Accountants Act, 2010, S.O. 2010, c. 6, Sched. B, by the Certified Management Accountants of Ontario. And, for Certified General Accountants, they were regulated and licenced under the Certified General Accountants Act, 2010, c. 6, Sched. A, by the Certified General Accountants of Ontario.

19On June 26, 2013, the members of both the Institute of Chartered Accountants of Ontario and members of the Certified Management Accountants of Ontario voted in favour of the unification of their two bodies. On April 2, 2014, the Chartered Professional Accountants of Ontario (formerly the Institute of Chartered Accountants of Ontario) and the Certified Management Accountants of Ontario signed a Unification Agreement which allowed members of the Certified Management Accountants of Ontario to become members of the newly formed Chartered Professional Accountants of Ontario (CPA Ontario). On June 18, 2014, members of the Certified Management Accountants of Ontario voted their approval to join the Chartered Professional Accountants of Ontario. On October 2, 2014, all 3 professional accounting bodies in Canada were united under one organization known as Chartered Professional Accountants of Canada.

20However, even though CPA Ontario became the governing body of all professional accountants in Ontario in 2014, the 3 statutes in Ontario governing the 3 professional accounting designations of Chartered Accountant, Certified Management Accountant, and Certified General Accountant (C.A., C.M.A. and C.G.A.) had not yet been amalgamated under one statute, so that CPA Ontario still regulated the 3 categories of professional accountants in Ontario under the 3 professional accounting statutes.

21On May 17, 2017, the 3 professional accountant statues (Chartered Accountants Act, 2010, Certified Management Accountants Act, 2010, and Certified General Accountants Act, 2010) that governed and regulated the different categories of professional accountants in Ontario were repealed and the Chartered Professional Accountants of Ontario Act, 2017 came into force, which now regulated and governed all the professional accountants in Ontario under one statute and under the umbrella of CPA Ontario.

(b) The Defendant

26The defendant was 48 years old at the time of the trial. He was born in India. In addition, the defendant is of the Sikh religion. He attended university in India and graduated with a Bachelor of Commerce degree. He also completed a Master of Business Administration degree in India. Furthermore, the defendant has approximately 25 years of experience working as a Chartered Accountant (C.A.) or Cost and Management Accountant (C.M.A.) with international companies in India, before he was accepted as a student of CPA Ontario on June 23, 2015.

29The defendant had received the professional accounting designation of "Chartered Accountant" (C.A.) from the Institute of Chartered Accountants of India in 1995. He was also granted in 2012 by the Institute of Chartered Accountants of India the designation of "Fellow Chartered Accountant (F.C.A.). In addition, the defendant had received the designation "Cost and Management Accountant (C.M.A.)" from the Institute of Cost Accountants of India in 2002. He also received the designation from the Institute of Cost and Management Accountants of India of "Fellow Cost and Management Accountant (F.C.M.A.)" in 2012. Furthermore, the defendant received the designation of "Certified Management Accountant (CMA)" from the Institute of Management Accountants (IMA) of the United States (date it was obtained is unknown).

(c) The Defendant Was Not a Member of CPA Ontario

30The defendant had been registered as a student of CPA Ontario on June 23, 2015. He had commenced the application process to become a student of CPA Ontario while he was working and residing in Cape Town, South Africa.

31The defendant, if not exempted by CPA Ontario from the education, examination and experience requirements of the qualification program of CPA Ontario for foreign qualified professional accountants, then the defendant would have been required to successfully complete those requirements to qualify for admission as a member of CPA Ontario. After the defendant was assessed, CPA Ontario granted the defendant an exemption from having to complete the academic prerequisites except for a course in Canadian business law, and also exempted from having to complete the first 4 modules of the CPA Prerequisite Education Program (PEP), and also exempted from having to fulfill the experience requirement as the defendant had 23 years of professional accounting experience. However, the defendant was not exempted from having to write the Common Final Exam (CFE). CPA Ontario also had required the defendant to complete the Capstone 1 Module and the Capstone 2 Module education courses. If the defendant were to successfully complete those specific requirements, then the defendant would be awarded upon admission to CPA Ontario the "Chartered Professional Accountant" designation and the entitlement to use the initials "C.P.A." or "CPA".

32However, the defendant had been deregistered by CPA Ontario as a student of CPA Ontario on February 12, 2018, after his third attempt and failure in passing the Common Final Exam (CFE).

3. THE CHARGES

96The defendant, Joginder Singh Gujral, has been charged with committing 8 regulatory offences between March 1, 2017 and June 30, 2018 in Information #5539 which was sworn on January 24, 2019. The following 8 counts contain the charges which had been proceeded with at trial:

Count 1: Taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, to wit: on the website http://gujraltutor.com, contrary to section 26 of the Certified Management Accountants Act, 2010.

Count 2: Taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, to wit: in a Kijiji advertisement, contrary to section 26 of the Certified Management Accountants Act, 2010.

Count 3: Taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, to wit: on the website http://gujraltutor.com, contrary to section 27 of the Chartered Accountants Act, 2010.

Count 4: Taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, to wit: in a Kijiji advertisement, contrary to section 27 of the Chartered Accountants Act, 2010.

Count 5: Taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on a LinkedIn profile, contrary to section 29 of the Chartered Professional Accountants of Ontario Act, 2017.

Count 6: Taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on the website http://home.icmai-canada.org, contrary to section 29 of the Chartered Professional Accountants of Ontario Act, 2017.

Count 7: Taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on the website http://gujralaccounting.ca, contrary to section 29 of the Chartered Professional Accountants of Ontario Act, 2017.

Count 8: Practising as a Chartered Professional Accountant while not a member of the Chartered Professional Accountants of Ontario, contrary to section 29(1)(d) of the Chartered Professional Accountants of Ontario Act, 2017.

4. ISSUES

97The following issues have arisen in this proceeding and need to be resolved:

(a) Has the defendant proven on a balance of probabilities that his rights or freedoms guaranteed under ss. 2(a), 2(b), 2(d), 6(2)(b), 7, 11(a), 11(b), 11(g), and 15 have been infringed by the purpose or effect of the applicable legislation or by government action (CPA Ontario)?

(b) If any of the defendant's rights or freedoms have been infringed, is the particular statutory provision a reasonable limit under s. 1 of the Charter?

(c) If any of the defendant's rights or freedoms have been infringed by government action (CPA Ontario), is a stay of proceedings the appropriate remedy that should be granted under s. 24(1) of the Charter?

(d) Has the prosecution proven that the defendant has committed the 8 offences set out in Information #5539 beyond a reasonable doubt?

(e) If the prosecution has proven the defendant has committed the actus reus of the respective 8 offences, then has the defendant proven on a balance of probabilities that he has a due diligence defence, which would entitle him to an acquittal?

5. ANALYSIS

(A) DEFENDANT'S CHARTER APPLICATION

(1) The Freedom Of Conscience And Religion Under S. 2(a)

110The defendant claims that the defendant's freedom of conscience and religion under s. 2(a) has been infringed because CPA Ontario has prevented the defendant from practicing his religion, since CPA Ontario is biased and hand-picking on the defendant.

119But more importantly, the prohibitions or measures set out in s. 26 of the Certified Management Accountants Act, 2010, and s. 27 of the Chartered Accountants Act, 2010, and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, which prohibits the defendant from using the defendant's foreign professional accounting designations, initials, or descriptions publicly in Ontario (except for the 3 statutory exceptions provided in those 3 pieces of legislation) or from practicing as Certified Management Accountant, Chartered Accountant or Chartered Professional Accountant in Ontario, does not have any nexus with religion, and therefore, their purpose or effect does not interfere with the defendant's freedom of religion guaranteed under s. 2(a) of the Charter. Nor is there any evidence that the actions of anyone with CPA Ontario has interfered with the defendant's ability to act in accordance with his religious beliefs in a manner that is more than trivial or insubstantial. Furthermore, there is no evidence adduced that would show that CPA Ontario's decision to prosecute the defendant is in any way related to the defendant's religion or freedom to practice his religion.

120Ergo, the defendant has not proven on a balance of probabilities that the defendant's freedom to practice his religion has been engaged or limited by any of the statutory prohibitions prohibiting the defendant from using the defendant's foreign professional accounting designations, initials, or descriptions publicly in Ontario or from practicing as Certified Management Accountant, Chartered Accountant or Chartered Professional Accountant in Ontario, or that anyone from CPA Ontario has interfered with the defendant's freedom of religion guaranteed under s. 2(a) of the Charter. As such, the defendant's freedom of religion claim under s. 2(a) is dismissed.

(2) The Freedom Of Expression Under S. 2(b)

121The defendant also claims that the defendant's freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication under s. 2(b) has been infringed because CPA Ontario is not allowing the defendant to publish his professional accounting designations and corresponding initials or descriptions that he had obtained from India and the United States on his LinkedIn profile page or in other media.

135As for the defendant's claim of an infringement of his s. 2(b) freedom of expression rights, considering that the provisions in s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, does prohibit the defendant from publicly taking or using his foreign professional accounting designations, initials, or descriptions in Ontario (except under 3 statutory circumstances), this legislative restriction does infringe upon the defendant's freedom of expression guaranteed under s. 2(b), as the prohibition by these 3 statutory provisions undermines the defendant's self-worth and human dignity by curtailing the ability of the defendant to express to the public his personal achievements and professional accomplishments through the use of his foreign professional accounting designation, initials, or descriptions, which as a consequence, constrains the defendant's dignity, self-worth, and inhibits his ability to achieve self-fulfillment or individual self-actualization.

136Therefore, since the defendant has proven on a balance of probabilities that taking or using his foreign professional accounting designations, initials, or descriptions publicly in Ontario is expressive activity, as well as expressive activity that his protected by s. 2(b), and that his freedom of expression has been limited by the purpose or effect of s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, the prosecution now has the onus to justify the infringement of the defendant's freedom of expression by those statutory provisions is a reasonable limit under s. 1 of the Charter, as can be demonstrably justified in a free and democratic society.

(b) Are the Statutory Prohibitions a Reasonable Limit Saved by S. 1?

139For step 1 of the Oakes test for the justification of the legislation which limits the defendant's freedom of expression, it is an assessment of the legislative object of the legislation in which the inquiry is whether the objective or purpose of the law is sufficiently important to justify limiting or overriding the Charter right. The objects of the Chartered Professional Accountants of Ontario Act, 2017, are provided for in s. 5 of that Act and includes promoting and protecting the public interest by governing and regulating individuals and entities as Chartered Professional Accountants, through establishing, maintaining, developing and enforcing standards of qualification, standards of practice, standards of professional ethics, and standards of knowledge, skill and proficiency.

140Ergo, the legislative object of s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, would be to ensure the public is protected from unqualified individuals practicing as Certified Management Accountants, Chartered Accountants, Chartered Professional Accountants, which is a pressing and substantial goal. Therefore, step 1 has been met.

141For step 2 of the Oakes test for the justification of the legislation which limits the defendant's freedom of expression, it is also an assessment of the legislative object of the legislation in which the inquiry is whether there is a rational connection between the legislation and its legislative purpose. In the present case, there is a rational connection between the means chosen, the prohibition of individuals who are not members of the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, and the Chartered Professional Accountants of Ontario from taking or using their foreign professional accounting designations, initials, or descriptions publicly in Ontario, would achieve the goal of protecting the public by ensuring unqualified individuals cannot practice as Certified Management Accountants, Chartered Accountants, Chartered Professional Accountants, since members of the public would not be misled that an individual taking or using his foreign professional accounting designations, initials, or descriptions publicly in Ontario, and who is not a member of one of the governing accounting bodies in Ontario, is indeed qualified to practice as a Certified Management Accountant, Chartered Accountant, or Chartered Professional Accountant in Ontario. Therefore, step 2 has been met.

142For step 3 of the Oakes test for the justification of the legislation which limits the defendant's freedom of expression, it is also an assessment of the legislative object of the legislation in which the inquiry is whether the means chosen to achieve the legislative object minimally impairs the freedom of expression. In other words, does the 3 statutory provisions in question impair the Charter right no more than is necessary to accomplish the legislative objective (or that the legislative measure chosen is the least drastic way or means to accomplish the legislative purpose). Moreover, the measure does not have to be a perfect scheme, but sufficient and appropriate within context of the infringed right. In addition to the measures chosen of prohibiting individuals, who are not members of the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, and the Chartered Professional Accountants of Ontario, from taking or using their foreign professional accounting designations, initials, or descriptions publicly in Ontario, the Ontario legislature has also provided 3 statutory exceptions for individuals to take or use their foreign professional accounting designations, initials, or descriptions publicly in Ontario when a qualifying public statement is included, which states that the individual is not a member of or regulated by one of the 3 governing accounting bodies in Ontario. Furthermore, this prohibition would only be temporary ban for students of CPA Ontario who have foreign professional accounting designations, until such time as they pass the qualification exam, fulfill the education and experience criteria and become members of CPA Ontario. Therefore, the legislation in question minimally impairs the defendant's freedom of expression. As such, step 3 has been met.

143For step 4 of the Oakes test for the justification of the legislation which limits the defendant's freedom of expression, it is an assessment of the severity of the deleterious effects of the measure on individuals or groups, in which the inquiry is whether the deleterious (harmful) effects of the measures chosen and the salutary (beneficial) effects to society of the measures chosen to achieve the legislative objective are proportional. In other words, it is the balancing of the proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the legislative objective which has been identified as of sufficient importance. For this step, the salutary effects to society by protecting the public from unqualified individuals by preventing them from holding themselves out as or from practicing as Certified Management Accountants, Chartered Accountants, or Chartered Professional Accountants in Ontario, outweighs the deleterious effects to the freedom of expression for an individual possessing foreign professional accounting designations. Therefore, step 4 has been met.

144As all 4 steps of the Oakes test has been met, the statutory provisions in question are reasonable limits on the freedom of expression that are demonstrably justified in a free and democratic society.

145Consequently, even though the purpose of s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, limits the defendant's freedom of expression under s. 2(b) of the Charter because it prohibits the defendant from taking or using his foreign professional accounting designations, initials, or descriptions publicly in Ontario, which impairs the defendant's ability to seek self-fulfillment through expressing publicly his professional and educational qualifications that he has earned and achieved through his life, these statutory provisions are nevertheless a reasonable limit on the freedom of expression. Therefore, s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 are all saved by s. 1 of the Charter. Accordingly, the defendant's claim under s. 2(b) is dismissed.

(3) The Freedom Of Association Under S. 2(d)

146The defendant further claims that the defendant's freedom of association under s. 2(d) has been infringed by CPA Ontario because of his association or membership in the Institute of Chartered Accountants of India, the Institute of Cost Accountants of India, and the Toronto Overseas Chapter of Cost Accountants of India.

154Therefore, the defendant has failed to prove on a balance of probabilities that the defendant's freedom of association under s. 2(d) of the Charter has been infringed by the action of CPA Ontario or by the purpose or effect of s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017. As a consequence, the defendant's Charter claim under s. 2(d) is dismissed.

(4) The Right To Move To And Take Up Residence In Any Province Under S. 6(2)

155Furthermore, the defendant claims that the defendant's right to move to and take up residence in any province and to pursue the gaining of a livelihood in any province guaranteed by s. 6(2) of the Charter has been infringed, by CPA Ontario preventing the defendant from using and displaying his international qualifications and by preventing the defendant from writing the professional accounting initials FCA (India) and FCMA (India) with the defendant's name on the defendant's LinkedIn profile page, which the defendant contends, prevents the defendant from pursuing the gaining of a livelihood in Ontario.

168Accordingly, the defendant has not proven on a balance of probabilities that his s. 6(2)(b) rights guaranteed under the Charter have been infringed by the purpose or effect of s. 26 of the Certified Management Accountants Act, 2010; s. 27 of the Chartered Accountants Act, 2010; and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017. Therefore, the defendant's Charter claim under s. 2(d) is dismissed.

(5) The Right To Life, Liberty, And Security Of The Person Under S. 7

169The defendant also claims that the defendant's right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice under s. 7 has been infringed because the pre-trial justice of the peace was biased and did not give the defendant time to be heard or to talk during the judicial pre-trial conference, and had therefore infringed his right to liberty.

180Accordingly, the defendant has not met his burden on a balance of probabilities that his right to liberty guaranteed by s. 7 has been infringed. Therefore, the defendant's claim under s. 7 is dismissed.

(6) The Right To Be Informed Without Unreasonable Delay Under S. 11(a)

181In addition, the defendant claims that the defendant's right under s. 11(a) of the Charter to be informed without unreasonable delay of the specific offence has been infringed by CPA Ontario, since the defendant had only been informed on February 2, 2019, of an alleged offence which had taken place on March 30, 2017, which is 23 months after the date of the alleged offence.

190Moreover, there is no evidence that would support a finding of actual or inferred prejudice due to the delay of 19 days that it took for the defendant to be informed of the 8 charges that would impact on the defendant's right to a fair trial on account of evidence being available and fresh, on account of witness credibility, or on account of the defendant's ability to cross-examine witnesses. Therefore, in the circumstances, the 19 days of delay that elapsed before the defendant had been informed of the 8 charges is not unreasonable, considering CPA Ontario had an outdated address for the defendant and because the defendant has not suffered any actual prejudice to his right to make full answer and defence as a result of the delay of 19 days, nor is the length of the delay of 19 days such that prejudice may be inferred.

191Ergo, the defendant has failed to prove on a balance of probabilities that his s. 11(a) right to be informed without unreasonable delay of the 8 specific offences has been infringed by the delay of 19 days. Accordingly, the defendant's claim under s. 11(a) is dismissed.

(7) The Right To Be Tried Within A Reasonable Time Under S. 11(b)

192Furthermore, the defendant claims that the defendant's right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter has been infringed, since the defendant's trial was set for September 11, 2019 for an alleged offence that had taken place on March 30, 2017, which is over 30 months after the date of the alleged offence.

204Now for the present case, even without subtracting defence delay, the total delay in this case is 14.5 months (or 446 days) from the date the initial information (#7488) had been sworn on June 22, 2018, to the trial date of September 11, 2019, which puts the defendant's trial squarely below the presumptive ceiling of 18 months. However, in circumstances where the trial takes place below the presumptive ceiling, it then falls on the defendant to demonstrate why the delay has, nevertheless, been unreasonable.

205On that issue, the defendant has made the opposite of a "sustained effort" to expedite the proceedings. Specifically, the defendant has repeatedly and deliberately attempted to delay the trial of this matter. At the defendant's first court appearance on October 2, 2018, the defendant's paralegal, Harpreet Luthra, delayed the matter by four months on account of his unavailability. And, by the second court appearance on February 5, 2019, the defendant's legal representative, Harpreet Luthra was no longer representing the defendant. Then, at the end of the judicial pre-trial conference held on March 26, 2019, the defendant refused to agree to any available date between March 26, 2019 and July 1, 2019, as the defendant had claimed that he had travel plans. But, when Amenta J.P., who was presiding at the judicial pre-trial conference, had asked the defendant for proof of those travel plans, the defendant produced airline tickets that had been purchased on April 3, 2019, which is a date following the pre-trial conference date of March 26, 2019, where the defendant had been asked to agree to a trial date. Then, on April 8, 2019, after Amenta J.P. had learned that the defendant had only booked his airline tickets after the defendant had refused to accommodate a trial at the end of June, Amenta J.P. asked the defendant to change his travel plans, but the defendant had refused to do so. Amenta J.P. then set the defendant's trial for September 11, 2019. Then, on August 19, 2019, the defendant brought a motion seeking to adjourn his trial scheduled for September 11, 2019, for the reason that the defendant had a settlement conference on September 11th for an unrelated small claims case, but which had only been scheduled at a point that was some three months after the defendant's trial date had already been set on April 8, 2019. At the hearing of the adjournment motion on September 3, 2019, Bonas J.P. dismissed the defendant's application for an adjournment, calling the defendant's motion "frivolous" and "lacking in truthfulness".

207Consequently, as the delay in getting to trial is not unreasonable the defendant's Charter application under s. 11(b) is dismissed.

(8) The Right Not To Be Found Guilty On Account Of Any Act Or Omission Unless It Constituted An Offence Under S. 11(g)

208Moreover, the defendant claims that the defendant's right not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations under s. 11(g) has been infringed, since the defendant contends that the defendant had only omitted to include a particular statement that CPA Ontario had wanted the defendant to include with his foreign professional accounting qualifications and their corresponding initials or descriptions when he was taking or using them publicly in Ontario.

216In sum, since there is no evidence that any of the charges laid under the 3 governing statutes were being applied retroactively, then s. 11(g) is not engaged, and as such, s. 11(g) has no application in or for the defendant's circumstances. Therefore, the defendant's claim under s. 11(g) of the Charter is dismissed.

(9) The Right To Equal Protection And Equal Benefit Of The Law Under S. 15(1)

217The defendant also claims that the defendant's right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability under s. 15 of the Charter has been infringed because CPA Ontario has discriminated against the defendant for being of the Sikh religion and for being a member of an ethnic group and not from the white race, since hundreds of people from the white community are writing their professional accounting designations and their corresponding initials or descriptions on LinkedIn and the internet and that CPA Ontario is specifically picking on the defendant for being a turban-clad Sikh.

240In sum, there has been no credible evidence that the defendant has been discriminated against by CPA Ontario based on one of the enumerated grounds under s. 15 of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, or on the basis of one of the 4 analogous grounds established by the Supreme Court of Canada of "citizenship""sexual orientation""marital status" or aboriginality-residence. Ergo, as the defendant has failed to prove on a balance of probabilities that s. 26 of the Certified Management Accountants Act, 2010, s. 27 of the Chartered Accountants Act, 2010, or s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 creates a distinction on the basis of an enumerated or analogous ground, as well as failing to prove on a balance of probabilities that CPA Ontario has exercised its statutory power in a discriminatory way, the defendant's claim under s. 15 of the Charter is dismissed.

(B) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAS COMMITTED THE ACTUS REUS OF THE RESPECTIVE OFFENCES FOR THE 8 COUNTS?

(1) Count #1 - The Website "http://gujraltutor.com"

241For count #1, the defendant has been charged with committing the offence between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, of taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, to wit: on the website http://gujraltutor.com, contrary to s. 26 of the Certified Management Accountants Act, 2010.

260Therefore, since the defendant's public-facing use of his foreign accounting designations, descriptions and their corresponding initials did not fall within the 3 exceptions set out under s. 26(2) of the Certified Management Accountants Act, 2010, and since the defendant is not a member of Certified Management Accountants of Ontario, and since the defendant did not expressly and specifically indicate on the "http://gujraltutor.com" website that the defendant is not a member of the Certified Management Accountants of Ontario and is not governed by the Certified Management Accountants of Ontario and that his services have not been approved or endorsed by the Certified Management Accountants of Ontario as required under ss. 26(2)(1)(ii) and 26(3) of Certified Management Accountants Act, 2010, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 26 of Certified Management Accountants Act, 2010 for count #1.

(2) Count #2 – Kijiji Advertisement

261For count #2, the defendant has been charged with committing the offence between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, of taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, to wit: in a Kijiji advertisement, contrary to s. 26 of the Certified Management Accountants Act, 2010.

271Furthermore, the defendant's Kijiji advertisement was aimed at the public in Ontario and the defendant's public-facing use of his foreign accounting designations, descriptions and their corresponding initials did not fall within the 3 exceptions set out under s. 26(2) of the Certified Management Accountants Act, 2010, and since the defendant is not a member of Certified Management Accountants of Ontario, and since the defendant did not expressly and specifically indicate on the Kijiji advertisement that the defendant is not a member of the Certified Management Accountants of Ontario and is not governed by the Certified Management Accountants of Ontario and that his services have not been approved or endorsed by the Certified Management Accountants of Ontario as required under ss. 26(2)(1)(ii) and 26(3) of Certified Management Accountants Act, 2010, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 26 of Certified Management Accountants Act, 2010 for count #2.

(3) Count #3 - The Website "http://gujraltutor.com"

272For count #3, between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, the defendant is charged with taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, to wit: on the website "http://gujraltutor.com", contrary to s. 27 of the Chartered Accountants Act, 2010.

277And, for count #3, as similarly decided in count #1, which also involved the defendant's website "http://gujraltutor.com", the taking or use by the defendant of his foreign professional accounting designations, initials or descriptions, did not fall within the 3 exceptions set out under s. 27(2) of the Chartered Accountants Act, 2010. Therefore, since the defendant is not a member of the Institute of Chartered Accountants of Ontario, and since the defendant did not expressly and specifically indicate on the "http://gujraltutor.com" website that the defendant is not a member of the Institute of Chartered Accountants of Ontario and is not governed by the Institute of Chartered Accountants of Ontario and that his services have not been approved or endorsed by the Institute of Chartered Accountants of Ontario, as required under ss. 27(2)(1)(ii) and 27(3) of the Chartered Accountants Act, 2010, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 27 of the Chartered Accountants Act, 2010 for count #3.

(4) Count #4 - Kijiji Advertisement

278For count #4, between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, the defendant is charged with taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, to wit: in a Kijiji advertisement, contrary to s. 27 of the Chartered Accountants Act, 2010.

288Furthermore, the defendant's Kijiji advertisement (Exhibit #8) was aimed at the public in Ontario and the defendant's public-facing use of his foreign accounting designations, descriptions and their corresponding initials did not fall within the 3 exceptions set out under s. 27(2) of the Chartered Accountants Act, 2010, and since the defendant is not a member of Institute of Chartered Accountants of Ontario, and since the defendant did not expressly and specifically indicate on the Kijiji advertisement that the defendant is not a member of the Institute of Chartered Accountants of Ontario and is not governed by the Institute of Chartered Accountants of Ontario and that his services have not been approved or endorsed by the Institute of Chartered Accountants of Ontario as required under ss. 27(2)(1)(ii) and 27(3) of the Chartered Accountants Act, 2010, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 27 of the Chartered Accountants Act, 2010 for count #4.

(5) Count #5 - LinkedIn Profile Page

289For count #5, between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, the defendant is charged with taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on a LinkedIn Profile, contrary to s. 29 of the Chartered Professional Accountants of Ontario Act, 2017.

308Furthermore, the defendant's public-facing use of his foreign accounting designations, descriptions and their corresponding initials did not fall within the 3 exceptions set out under s. 29(2) of the Chartered Professional Accountants of Ontario Act, 2017, and since the defendant is not a member of CPA Ontario, and since the defendant did not expressly and specifically indicate on the defendant's LinkedIn profile page that the defendant is not a member of Chartered Professional Accountants of Ontario (CPA Ontario) and is not governed by the Chartered Professional Accountants of Ontario (CPA Ontario) and that his services have not been approved or endorsed by the Chartered Professional Accountants of Ontario (CPA Ontario) as required under ss. 29(2)(b) and 29(3) of the Chartered Professional Accountants of Ontario Act, 2017, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 for count #5.

(6) Count #6 - The Website "http://home.icmai-canada.org"

309For count #6, between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, the defendant is charged with taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on the website http://home.icmai-canada.org, contrary to s. 29 of the Chartered Professional Accountants of Ontario Act, 2017.

320Furthermore, the defendant's website "http://home.icmai-canada.org." was aimed at the public in Ontario and the defendant's public-facing use of his foreign accounting designations, descriptions and their corresponding initials did not fall within the 3 exceptions set out under s. 29(2) of the Chartered Professional Accountants of Ontario Act, 2017, and since the defendant is not a member of Chartered Professional Accountants of Ontario (CPA Ontario), and since the defendant did not expressly and specifically indicate on the website "http://home.icmai-canada.org." that the defendant is not a member of the Chartered Professional Accountants of Ontario (CPA Ontario) and is not governed by the Chartered Professional Accountants of Ontario (CPA Ontario) and that his services have not been approved or endorsed by the Chartered Professional Accountants of Ontario (CPA Ontario), as required under ss. 29(2)(b) and 29(3) of the Chartered Professional Accountants of Ontario Act, 2017, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 for count #6.

(7) Count #7 - The Website "http://gujralaccounting.ca"

321For count #7, between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, the defendant is charged taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, to wit: on the website http://gujralaccounting.ca, contrary to s. 29 of the Chartered Professional Accountants of Ontario Act, 2017.

332Furthermore, the defendant's public-facing use of his foreign accounting designations, descriptions and their corresponding initials did not fall within the 3 exceptions set out under s. 29(2) of the Chartered Professional Accountants of Ontario Act, 2017, and since the defendant is not a member of CPA Ontario, and since the defendant did not expressly and specifically indicate on the defendant's website "http://gujralaccounting.ca" that the defendant is not a member of Chartered Professional Accountants of Ontario (CPA Ontario) and is not governed by the Chartered Professional Accountants of Ontario (CPA Ontario) and that his services have not been approved or endorsed by the Chartered Professional Accountants of Ontario (CPA Ontario), as required under ss. 29(2)(b) and 29(3) of the Chartered Professional Accountants of Ontario Act, 2017, then the prosecution has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence under s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 for count #7.

(8) Count #8 – Practicing as Chartered Professional Accountant

333For count #8, between March 1, 2017 and June 30, 2018, at the City of Brampton in the Regional Municipality of Peel and elsewhere in the Province of Ontario, the defendant is charged with practising as a Chartered Professional Accountant while not a member of the Chartered Professional Accountants of Ontario, contrary to s. 29(1)(d) of the Chartered Professional Accountants of Ontario Act, 2017.

345Therefore, the "www.gujralaccounting.ca" website that had been observed by Karen Armstrong on March 20, 2018 and the website "http://gujraltutor.com" that had been observed by Karen Armstrong on March 23, 2017, is evidence beyond a reasonable doubt that the defendant has committed the actus reus of the offence under s. 29(1)(d) of the Chartered Professional Accountants of Ontario Act, 2017 set out in count #8 of "practicing as a Chartered Professional Accountant while not a member of the Chartered Professional Accountants of Ontario".

(E) DUE DILIGENCE DEFENCE

346Even though the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the 8 offences set out in Information #5539, the defendant is still entitled to an acquittal in a prosecution of a strict liability offence, if he can prove on a balance of probabilities that he has a defence of due diligence by showing that he had taken all reasonable steps for the circumstances to avoid the particular event or to prove that he had reasonably believed in a mistaken set of facts, if true, would render his act or omission innocent.

(1) Has the Defendant Taken All Reasonable Care in the Circumstances?

349Even though the defendant had been informed by registered mail by Tom Litzgus, Associate General Counsel of CPA Ontario, on March 30, 2017, about the improper public use of his foreign professional accounting designations, corresponding initials or descriptions, the defendant had continued to use his foreign professional accounting designations, corresponding initials or descriptions publicly in Ontario despite the defendant's promise he would abide by the Act and abide by the guidelines described by Tom Litzgus.

351Therefore, the defendant has failed to prove on a balance of probabilities that he had taken all reasonable steps or reasonable care in the circumstances to avoid committing the actus reus of the 8 offences set out in Information #5539.

(2) Did the Defendant Reasonably Believe in a Mistaken Set of Facts?

352The defendant submits that he would not be here today if CPA Ontario had ensured that the April 3, 2018 letter had actually been sent to his correct address, then he would have known about CPA Ontario's concerns and he would have remedied CPA Ontario's concerns immediately as he had done previously.

353However, both the common law, as well as s. 81 of the Provincial Offences Act, R.S.O. 1990, c. P.33, have established that "ignorance of the law" is not a defence.

355Accordingly, the defendant has also failed to prove on a balance of probabilities the second leg of the due diligence defence in having a reasonable belief in a mistaken set of facts, if true, would render his act or omission innocent.

6. DISPOSITION

357In respect to the defendant's Charter application for a remedy of a stay of proceedings for contraventions of ss. 2(a), 2(d), 6, 7, 11(a), 11(b), 11(g), and 15 of the Charter of Rights and Freedoms, the defendant's application on all those specific claims of a Charter violation is dismissed. The defendant did not prove on a balance of probabilities that ss. 2(a) (freedom of religion), 2(d) (freedom of association), 6 (mobility rights), 7 (life, liberty, and security of the person), 11(a) (right to be informed of specific offence without delay), 11(b) (trial within a reasonable time), 11(g) (retroactive offences), and 15 (equality rights) had been infringed by the actions of the Chartered Professional Accountants of Ontario or that s. 26 of the Certified Management Accountants Act, 2010, s. 27 of Chartered Accountants Act, 2010, and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, had by their purpose or effect infringed on those specific rights or freedoms.

358And, in respect to the defendant's claim of an infringement of his "freedom of expression" under s. 2(b) of the Charter, s. 26 of the Certified Management Accountants Act, 2010, s. 27 of Chartered Accountants Act, 2010, and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, which prohibits the defendant from publicly using his foreign professional accounting designations or corresponding initials or descriptions he had earned from India and the United States in Ontario, does limit the defendant's freedom of expression and is therefore an infringement of s. 2(b) of the Charter. However, s. 26 of the Certified Management Accountants Act, 2010, s. 27 of Chartered Accountants Act, 2010, and s. 29 of the Chartered Professional Accountants of Ontario Act, 2017, are all saved under s. 1 of the Charter as a reasonable limit that is demonstrably justified in a free and democratic society.

359Furthermore, based on the totality of the evidence, the prosecution has fulfilled its burden in proving that Joginder Singh Gujral has committed the 8 offences set out in Information #5539 beyond a reasonable doubt.

360Therefore, a conviction will be entered against Joginder Singh Gujral for each of those 8 counts on Information #5539.

Dated at the City of Brampton on November 29, 2019.

Quon J.P. Ontario Court of Justice