Her Majesty the Queen v. Najam Mahmood
COURT FILE NO.: CRIMJ(F) 310/10
DATE: 2018-05-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
RESPONDENT
– and –
NAJAM MAHMOOD
APPLICANT
COUNSEL:
C. Zary, for the Crown
In Person
HEARD: April 16, 2018
BEFORE: LEMON J.
RULING: APPLICATION FOR CHANGE OF TERMS OF FINE ORDER
Issue
[1] Mr. Mahmood has brought an application to extend the time for payment of his fine for a further 10 years.
[2] On December 21, 2012, Mr. Mahmood was convicted of 8 counts of tax evasion under the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) and the Excise Tax Act, R.S.C., 1985, c. E-15. He was convicted by jury, and sentenced by me. On July 5, 2013, I sentenced Mr. Mahmood to one year in jail and fined him a total of $687,000.00 for eight fines, and gave him ten years to pay the fines.
[3] Both the Crown and Mr. Mahmood appealed. The Court of Appeal upheld the conviction, but partially allowed the appeal as to Mr. Mahmood’s sentence. The Court of Appeal changed the time of payment from ten years to two years.
[4] Mr. Mahmood has now brought his application to extend the time for the payment of the fine portion of his sentence.
Preliminary Issues
[5] In his application, Mr. Mahmood sets out that he was fined a total of $800,000.00. The Crown has properly confirmed that the court office seems to have mistakenly applied a victim fine surcharge. The Crown has advised both myself, and the court office, that this fine does not attract a victim fine surcharge and that Mr. Mahmood was only fined the sum of $687,000.00.
[6] In his materials, Mr. Mahmood said that he has paid $1,000.00 toward the fine. In his submissions, he advised that he has paid a further $500.00 as of the Friday before the hearing. The Crown could not confirm but did not dispute the further $500.00 payment. I will therefore assume that he has outstanding fines of $685,500.00.
[7] Section 734.3 of the Criminal Code, R.S.C., 1985, c. C-46, sets out that “a court that makes an order under section 734.1… may… change any term of the order except the amount of the fine”. Given that the Court of Appeal made the order that Mr. Mahmood should pay the fine within two years, I raised with both parties as to whether the application was properly before this Court. The Crown submitted that the application was properly before this Court, as I granted the original sentence. Mr. Mahmood also requested that I deal with the current application. I therefore left the question of jurisdiction unanswered and proceeded to hear the application as it was on consent by both parties.
[8] The Court of Appeal’s decision was dated January 26, 2016. Mr. Mahmood brought his application February 8, 2018. Arguably, he is outside the time in which he should make this application. Mr. Mahmood advised that he had brought an earlier application but was unable to file it with the court’s office. The Crown did not dispute that I could hear this matter, even if I found that the application was brought outside the two-year time frame. Again, at the request of the parties, I proceeded to hear the matter regardless of any issue relating to when Mr. Mahmood filed his application, or whether he had entered the “default period” per s. 734(1)(3) of the Criminal Code.
Positions of the Parties
[9] Mr. Mahmood provided brief materials to the Court. In essence, he advises that he has been unable to find work. He does not dispute that he is required to pay the fine, but seeks a further ten years to do so.
[10] The Crown submits that there is insufficient evidence to make the order requested. The Crown does not dispute an order extending the time for a further two years. The Crown, however, seeks terms of payment to be sure that Mr. Mahmood is putting his mind to paying what is required to be paid.
Analysis
[11] Mr. Mahmood’s application is decidedly sparse.
[12] He has a bankruptcy proceeding underway but has provided no other information with respect to that bankruptcy. He has not provided any information setting out his assets, liabilities, or any other details of his financial circumstances.
[13] On April 8, 2015, the Ontario Court of Appeal heard Mr. Mahmood’s application to have the Attorney General of Canada pay for his lawyer for his conviction and sentence appeal. Watt J.A., writing for the Court, dismissed the application, stating:
[42] Second, Mahmood’s claim of financial means to retain counsel privately rings hollow. He was represented at trial by counsel who was privately retained. The trial lasted three months. He acknowledges having earned a total of $5,300,000.00 between 2003 and 2007. He offers no credible explanation for its disappearance. Certainly none of it made its way to the tax authorities. Other family members have declined to provide financial information so that an informed assessment may be made about financial means. Mahmood’s sense of entitlement to state funding from the authority which prosecuted him is misplaced.
[Emphasis added].
[14] Despite that clear statement, Mr. Mahmood continues to adduce little support for his application in relation to his financial circumstances. The Crown is agreeable that a two-year extension is appropriate in this case. Without that concession, I would have dismissed Mr. Mahmood’s application.
[15] Mr. Mahmood is apparently healthy. There is nothing in his materials that suggests otherwise. His sense of entitlement has continued. He candidly acknowledges that he has chosen not to work. He says that he would rather take time to think about how to make a million dollars than make $10,000.00. He also complains that if he works and earns money, it is likely to be taken by the Canada Revenue Agency. I believe that I made it clear to him and I will restate it in these reasons; Mr. Mahmood needs to find employment to pay his fines.
[16] The Crown submits that Mr. Mahmood should make regular payments of $50.00 per month, which would demonstrate to the Court and to the Crown that he is making some efforts to pay his fine. However, the Crown acknowledges that if Mr. Mahmood fails to make one or all of the monthly payments, the Crown is unable to enforce the payments until the two year time extension has elapsed.
[17] In my view, imposing monthly payments in this case would amount to an order that prioritizes form over substance. Effectively, since the Court of Appeal decision, Mr. Mahmood has paid slightly more than such a term in any event.
[18] Certainly, it would be in Mr. Mahmood’s best interests with respect to any further application to show that he has made regular and significant payments on his fine. However, I am not inclined to make the order for monthly payments where there would be no real impact on Mr. Mahmood. Mr. Mahmood shall therefore be granted another two year extension to pay the outstanding fine of $685,500.00.
[19] Any further application should include full information and supporting documentation with respect to Mr. Mahmood’s bankruptcy proceedings. Mr. Mahmood should also file a Financial Statement setting out his income, expenses, assets and liabilities, as at the time of trial, the time of the appeal, the time of this application, and the time of any new application should he wish to file one.
Result
[20] For the reasons stated above, I extend Mr. Mahmood’s time to pay the outstanding fine for a further two years from this date, May 8, 2018.
Lemon J.
Released: May 8, 2018
COURT FILE NO.: CRIMJ(F) 310/10
DATE: 2018-05-08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NAJAM MAHMOOD
RULING: APPLICATION FOR CHANGE OF TERMS
Lemon J.
Released: May 8, 2018