Reasons for Sentence
Court Information
Date: July 3, 2020
Court: Ontario Court of Justice, Brampton, Ontario
Judge: Quon J.P.
Parties:
- Prosecutor: Chartered Professional Accountants of Ontario
- Defendant: Joginder Singh Gujral (No. 2)
Counsel:
- Madeline Brown, Polley Faith LLP, for the Chartered Professional Accountants of Ontario
- Joginder Singh Gujral, unrepresented
Sentencing Hearing: January 17, 2020
Offences Convicted On (8 Counts)
Between March 1, 2017 and June 30, 2018 at the City of Brampton, Joginder Singh Gujral committed:
(1) Three counts 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, contrary to section 26 of the Certified Management Accountants Act, 2010;
(2) Two counts of 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, contrary to section 27 of the Chartered Accountants Act, 2010;
(3) Three counts of 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, contrary to section 29 of the Chartered Professional Accountants of Ontario Act, 2017;
(4) One count of practicing as a Chartered Professional Accountant while not being a member of the Chartered Professional Accountants of Ontario, contrary to section 29(1)(d) of the Chartered Professional Accountants of Ontario Act, 2017.
1. INTRODUCTION
The Issues Before the Court
The court must determine an appropriate sentence for the convicted offender's eight regulatory offences. Two principal issues arise:
- What penalty or sanction should be imposed on the convicted offender?
- Should the convicted offender be ordered to pay $58,190.60 in legal costs and disbursements incurred by the prosecution?
If a costs order is warranted, the court must determine whether all or part of the prosecution's costs should be paid by the offender, and what factors should be considered in calculating the reasonable amount of those costs.
Background of the Conviction
Joginder Singh Gujral was convicted on November 29, 2019, of committing eight public welfare or regulatory offences under three different professional accounting statutes in Ontario. The offences involved practicing as a Chartered Professional Accountant while not being a member of the Chartered Professional Accountants of Ontario ("CPA Ontario"), and taking or using professional accounting designations or descriptions on websites available to the public in Ontario while not being a member of the respective professional accounting bodies.
2. BACKGROUND
The Regulatory Offences Committed
The eight offences were committed in Brampton between March 1, 2017 and June 30, 2018:
- Count #1: Using CMA designation on website http://gujraltutor.com
- Count #2: Using CMA designation in a Kijiji advertisement
- Count #3: Using CA designation on website http://gujraltutor.com
- Count #4: Using CA designation in a Kijiji advertisement
- Count #5: Using professional accounting designations on LinkedIn profile
- Count #6: Using professional accounting designations on website http://home.icmai-canada.org
- Count #7: Using professional accounting designations on website http://gujralaccounting.ca
- Count #8: Practicing as a Chartered Professional Accountant while not a member of CPA Ontario
The Offender, Joginder Singh Gujral
Age and Background: Gujral was 48 years old at the time of trial. He was born in India and attended university there, graduating with a Bachelor of Commerce degree and a Master of Business Administration degree.
Professional Experience: Gujral has approximately 20 years of experience working as a Chartered Accountant (C.A.) or Cost and Management Accountant (C.M.A.) with various international companies in India and elsewhere.
Professional Designations Obtained:
- Chartered Accountant (C.A.) from the Institute of Chartered Accountants of India (1995)
- Fellow Chartered Accountant (F.C.A.) from the Institute of Chartered Accountants of India (2012)
- Cost and Management Accountant (C.M.A.) from the Institute of Cost Accountants of India (2002)
- Fellow Cost and Management Accountant (F.C.M.A.) from the Institute of Cost and Management Accountants of India (2012)
- Certified Management Accountant (C.M.A.) from the Institute of Management Accountants of the United States (date unknown)
CPA Ontario Student Status: Gujral was registered as a student of CPA Ontario on June 23, 2015. He commenced the application process while working in Cape Town, South Africa. He was not exempted from the education and examination requirements and was required to successfully complete the Common Final Exam (CFE) to qualify for membership. After three failed attempts at the CFE, Gujral was deregistered as a student of CPA Ontario on February 12, 2018.
Current Status: Gujral is a permanent resident of Canada and resides in Brampton, Ontario. He is not a member of CPA Ontario, the Certified Management Accountants of Ontario, or the Institute of Chartered Accountants of Ontario.
Employment and Financial Circumstances
Employment: Gujral testified that he had two full-time jobs. He has been employed with Data Communications Management Corp. of 9195 Torbram Rd., Brampton, Ontario since April 30, 2018, earning approximately $90,000 per year before deductions ($47.4184 per hour for 73 hours of work every two weeks for 26 pay periods in a year).
Business: On his website "http://gujralaccounting.ca," Gujral advertised that his accounting firm, "Gujral Accounting," had offices in Ontario providing accounting and taxation services to small or medium-sized entrepreneurial clients, serving the Greater Toronto Area including Brampton, Mississauga, Toronto, Thornhill, Richmond Hills, Scarborough, North York and Etobicoke.
Property: Gujral owns a house in Brampton, Ontario at 5 Keystone Drive with an outstanding mortgage.
Dependents: Gujral has three dependents:
- His wife, a housewife who does not earn any income
- His daughter, a university student who does not earn any income
- His son, a Grade 12 high school student who does not earn any income
Continued Unlawful Use of Designations
On January 16, 2020—the day before the sentencing hearing—Gujral was still unlawfully using his foreign professional accounting designations on his LinkedIn webpage, which is publicly accessible in Ontario. He used the designations "CMA(USA)," "FCA(India)," and "FCMA(India)" without including the required disclaimer that he is not a member of CPA Ontario and not regulated by CPA Ontario.
Gujral's Improper Conduct in the Proceedings
Judicial Pre-trial Conference (March 26, 2019): Gujral did not act with sincerity or candour. He refused to set a trial date, claiming he would be unavailable because he had to be out of the country. When ordered to provide proof on April 8, 2019, he produced airline tickets purchased on April 3, 2019—after the first pre-trial conference. This caused CPA Ontario to incur costs for an additional court appearance.
Adjournment Application (August 19, 2019): Gujral brought an unmeritorious and groundless application to adjourn the scheduled trial date of September 11, 2019. Justice Bonas dismissed the application, finding Gujral's grounds and motion "frivolous" and "lacking in truthfulness." CPA Ontario had to incur additional legal costs to oppose this application.
Charter Claims at Trial: Gujral raised many frivolous, groundless, and unmeritorious claims of Charter infringements. Only his claim regarding freedom of expression under section 2(b) of the Charter had any merit. CPA Ontario had to incur additional legal costs to research and address these claims.
3. POTENTIAL PENALTIES UNDER THE THREE PROFESSIONAL ACCOUNTING STATUTES
Certified Management Accountants Act, 2010
Under section 27(1), a person convicted of an offence under section 26 is liable to a fine of not more than $10,000.
Under section 27(3), the court may prescribe probation conditions including:
- Payment of compensation or restitution to any person who suffered a loss
- A condition not to contravene section 26
Under section 28(1), the court may order the convicted person to pay to the Corporation some or all of the costs reasonably incurred in prosecuting the offence and in undertaking any investigation related to the subject matter of the prosecution.
Chartered Accountants Act, 2010
Under section 28(1), a person convicted of an offence under section 27 is liable to a fine of not more than $10,000.
Under section 28(3), the court may prescribe probation conditions including:
- Payment of compensation or restitution
- A condition not to contravene section 27
Under section 29(1), the court may order the convicted person to pay to the Institute some or all of the costs reasonably incurred in prosecuting the offence and in undertaking any investigation related to the subject matter of the prosecution.
Chartered Professional Accountants of Ontario Act, 2017
Under section 30(1), a person convicted of an offence under section 29 is liable to a fine of not more than $10,000 for a first offence, and not more than $25,000 for each subsequent offence.
Under section 30(3), the court may prescribe probation conditions including:
- Payment of compensation or restitution
- A condition not to contravene section 29
Under section 31(1), the court may order the convicted person to pay to CPA Ontario some or all of the costs reasonably incurred in prosecuting the offence and in undertaking any investigation related to the subject matter of the prosecution.
No Imprisonment Available
Importantly, Gujral is not subject to imprisonment for these eight convictions, as such a penalty is not expressly provided for under any of the three professional accounting statutes.
4. SENTENCING PRINCIPLES FOR REGULATORY OFFENCES
Universal Sentencing Principles Apply
Although the Provincial Offences Act does not expressly set out sentencing principles like those in the Criminal Code, universal principles of sentencing apply to all offences, including regulatory offences. The sentencing principles set out in sections 718, 718.1, and 718.2 of the Criminal Code apply to regulatory offences.
Fundamental Purpose of Sentencing
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- To denounce unlawful conduct
- To deter the offender and other persons from committing offences
- To separate offenders from society, where necessary
- To assist in rehabilitating offenders
- To provide reparations for harm done to victims or to the community
- To promote a sense of responsibility in offenders
Sentencing Must Be Proportionate
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.
Deterrence is Paramount in Regulatory Offences
In regulatory offences, deterrence is the paramount sentencing objective. The fine must be substantial enough to warn others that the offence will not be tolerated, but without being harsh. The fine must not appear to be a mere licence fee for illegal activity.
Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. The amount of the fine will be determined by a complex of considerations, including:
- The size of the entity involved
- The scope of the economic activity in issue
- The extent of actual and potential harm to the public
- The maximum penalty prescribed by statute
- The need to enforce regulatory standards by deterrence
Moral Blameworthiness in Regulatory Offences
Regulatory offences form a continuum ranging from less serious to very serious. As one approaches the "very serious" end of the continuum, one is dealing with offences designed to address "inherently wrongful conduct" with a greater degree of moral blameworthiness.
Where the moral blameworthiness of a particular offender increases, so too can the penalty imposed. However, the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present.
The Totality Principle
The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.
5. THE APPROPRIATE SENTENCE FOR JOGINDER SINGH GUJRAL
Ability to Pay a Fine
Legal Requirement: A sentencing court cannot impose a fine unless it is satisfied that the offender is able to pay the fine. A "means inquiry" is a condition precedent to the imposition of a fine.
Burden of Proof: The party seeking the fine has the burden to satisfy the court that the offender is able to pay. The standard of proof is the balance of probabilities. The offender does not have a formal burden of proof but may present evidence tending to show inability to pay.
Gujral's Financial Circumstances: Despite Gujral's claims of impecuniousness and threats of bankruptcy, the evidence demonstrates he has the ability to pay:
- He has been gainfully employed with the same employer since April 30, 2018
- His annual employment income is approximately $90,000 before deductions
- He owns a house in Brampton with significant equity
- He has publicly stated on his LinkedIn profile that he has worked for Fortune 500 companies and has 20 years of professional experience
- He operates an accounting business serving the Greater Toronto Area
Gujral's submission that he may have to declare bankruptcy is not credible. Under section 178(1)(a) of the Bankruptcy and Insolvency Act, fines imposed by a court are not released by an order of discharge.
Gujral did not provide any financial documents (tax returns, bank statements, mortgage documents) to support his claims of inability to pay, despite being reminded that such documentation would be necessary.
Appropriate Fines
Sentencing Principles Applied:
The court considered:
- The need to protect the public from unregulated individuals holding themselves out as members of professional accounting bodies
- The need for general and specific deterrence
- Gujral's continued unlawful use of designations up to the day before sentencing (specific deterrence)
- Gujral's ability to pay
- The proportionality principle
- The totality principle
Fine Imposed:
Joginder Singh Gujral will pay the following fines for the 8 convictions:
- Count #1: No fine
- Count #2: No fine
- Count #3: $2,000
- Count #4: No fine
- Count #5: $2,000
- Count #6: No fine
- Count #7: $6,000
- Count #8: $6,000
Total Fines: $16,000 (exclusive of court costs and victim fine surcharge)
Payment Terms: Due to the COVID-19 pandemic, Gujral will be given 36 months to pay the fines and corresponding court costs and victim fine surcharge.
Probation Order
A two-year probation order is warranted to address specific deterrence, given that Gujral was still unlawfully using his foreign professional accounting designations publicly in Ontario up to the day before the sentencing hearing.
Statutory Conditions (section 72(2) of the Provincial Offences Act):
Joginder Singh Gujral is not to commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment
Joginder Singh Gujral is to appear before the court as and when required
Joginder Singh Gujral is to notify the court of any change in his address
Costs Order
Legal Framework for Costs in Regulatory Offences
Statutory Authority: The three professional accounting statutes applicable to Gujral expressly authorize the court to order a convicted non-member to pay to the professional body some or all of the costs reasonably incurred in prosecuting the offence and in undertaking any investigation related to the subject matter of the prosecution.
Distinction from Civil Costs: Costs awards in regulatory offences are not governed by the Rules of Civil Procedure. The criteria for determining reasonable costs in regulatory proceedings are more similar to those in administrative disciplinary proceedings than to civil litigation.
Purpose of Costs in Regulatory Offences: Unlike civil litigation where costs are primarily compensatory, costs in regulatory offences serve different purposes:
- They are not meant to be punitive
- They reflect the principle that members of a self-governing professional body should not bear the full burden of investigating and prosecuting non-members who violate the regulatory statutes
- They are a reimbursement of part of the professional body's costs, not full indemnification
Criteria for Reasonable Costs:
The court considered the following factors:
- Whether the potential order for costs would have a chilling effect on the defendant's ability to raise defences or contest charges
- The purpose of costs awards is not compensatory in quasi-criminal proceedings
- Costs awards should not be punitive but viewed as reimbursement
- The amount and severity of penalties already imposed
- Whether the defendant's conduct during proceedings was improper and caused unnecessary additional costs
- The defendant's ability to pay
- Whether proration is appropriate where some charges resulted in acquittals
- The defendant's obligation to provide financial information regarding hardship
Gujral's Improper Conduct:
Gujral's conduct during the proceedings caused CPA Ontario to incur additional legal costs:
- He deliberately delayed proceedings by refusing to agree to a trial date
- He brought a frivolous and unmeritorious adjournment application
- He raised numerous unsupported and frivolous Charter claims
- Only his freedom of expression claim had any merit
However, the court also considered:
- Gujral was unrepresented during most of the proceedings
- A substantial costs award could infringe on an accused person's ability to make full answer and defence
- Professional accounting bodies are self-governing and funded by member fees
- The purpose is not to punish but to ensure non-members bear part of the cost of enforcement
Costs Awarded:
Joginder Singh Gujral will pay $10,000 to CPA Ontario as reasonable legal costs incurred in the prosecution of Gujral.
This amount is substantially less than the $58,190.60 in costs actually incurred by CPA Ontario.
Payment Terms: Due to the COVID-19 pandemic, Gujral will be given 24 months to pay the $10,000 in reasonable legal costs.
6. DISPOSITION
Therefore, Joginder Singh Gujral is sentenced as follows:
Fines
Total fines: $16,000 (exclusive of court costs and victim fine surcharge)
- Count #3: $2,000
- Count #5: $2,000
- Count #7: $6,000
- Count #8: $6,000
Payment: 36 months from the date of sentencing
Probation
Period: 2 years
Statutory Conditions:
Not to commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment
To appear before the court as and when required
To notify the court of any change in address
Costs Order
Amount: $10,000 to be paid to the Chartered Professional Accountants of Ontario as reasonable legal costs
Payment: 24 months from the date of sentencing
Released: July 3, 2020
Quon J.P.
Ontario Court of Justice