R. v. Klundert, 2011 ONCA 646

Windsor, Ontario-based optometrist, Jack Klundert, who had previously been acquitted in two jury trials for his open and honest refusal to comply with the requirements 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 his conviction, as well as his one-year custodial sentence.

The Ontario Court of Appeal dismissed the appeal from conviction, granting far greater deference to the jury which convicted Dr. Klundert than to the first two who acquitted him.

On the appeal from sentence, however, the Court of Appeal identified a number of serious errors on the trial judge’s part, including his failure to consider Dr. Klundert’s lack of fraudulent intent:

“[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.”

In addition, Dr. Klundert was found to be a law-abiding citizen who had not shown contempt for the rule of law generally, but merely expressed his strong disapproval of a specific law:

“[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.”

Finally, the Court of Appeal corrected the trial judge’s statement that the lengthy proceedings were “self-imposed” by Dr. Klundert, noting that it was the Crown which had exercised its right of appeal on two previous occasions:

“[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.”

On this basis, the Court of Appeal set aside Justice Patterson’s one-year custodial sentence, and substituted a conditional sentence to be served in the community.

Despite Dr. Klundert’s conviction, his case stands for the proposition that a custodial sentence is inappropriate for a peaceful first-time offender whose intent was protest what he saw as an unjust law.

Decided by the Ontario Court of Appeal on October 17, 2011.
Click here for the full text of the decision.

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