New trial ordered for Chilliwack couple who were convicted in major tax-evasion case
By Keith Fraser, The Province
A Chilliwack couple convicted in a major income tax evasion case have had their convictions quashed on appeal and a new trial ordered.
In January 2012, Russell Anthony Porisky and his partner, Elaine Gould, were convicted of operating a school called Paradigm Education, which counselled hundreds of its students to be tax cheats.
Porisky, a father of four, was found guilty of income tax evasion, failing to collect goods and services taxes and counselling to commit fraud. He received a four-and-a-half-year jail term.
Gould, a mother of three, was convicted only of income tax evasion and received a conditional sentence.
Court heard that the fraudulent counselling of more than 800 students resulted in an estimated $11 million in income tax evasion.
Porisky said he didn’t pay taxes because he believed in a scheme, discredited by the courts, under which citizens can dodge taxes if they declare themselves to be “natural persons.”
He was found to have personally failed to pay $274,000 in income taxes and GST, while Gould was $27,000 in arrears.
The couple argued a number of grounds of appeal, including that they hadn’t received a fair trial after their re-election to be tried by judge alone instead by a jury was entered by B.C. Supreme Court Justice Elliott Myers.
On Nov. 1, 2011, the date for their jury selection, they had failed to appear in court and bench warrants for their arrest were issued.
They were arrested and brought before the judge. Asked why they hadn’t appeared, Porisky said his son had a brain tumour.
What followed was a lengthy, back-and-forth discussion about whether or not they were now re-electing to be tried by judge alone. The judge ultimately decided they were re-electing.
But in a ruling released Monday, the B.C. Court of Appeal said that Myers had erred in his handling of the re-election issue.
In her reasons for judgment, B.C. Court of Appeal Justice Mary Saunders said that given the importance accorded the right to a jury, it would be wrong to sanction the loss of a jury trial absent a clear indication there is no prejudice.
“We cannot say there is no prejudice here.”
Saunders noted that Porisky had started by telling Myers that he had intended to appear for jury selection and by the end of the hearing was taken to have decided on a different mode of trial.
“Between that beginning and end is considerable confusion, not helped by any opportunity to seek help. I do not consider that it can be said with any confidence that Mr. Porisky received the mode of trial he desired.”
Gould’s trial was “incurably tangled” with Porisky’s trial and therefore her conviction should be quashed as well and a new trial ordered for her, too, said Saunders.
Justice Edward Chiasson agreed with Saunders but a third judge on the panel, Justice Peter Willcocks, gave dissenting reasons.