CITATION:
R. v. Yadegari, 2011
          ONCA 287

DATE: 20110412

DOCKET: C52601

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahmoud Yadegari

Appellant

Frank Addario and William Thompson, for the appellant

Croft Michaelson and Jennifer Conroy, for the respondent

Heard: February 3, 2011

On appeal from the convictions entered by Justice C. Mocha of
          the Ontario Court of Justice on July 6, 2010 and the sentences imposed on
          July 29, 2010.

Cronk J.A.:

I.         Introduction

[1]

The proliferation of nuclear weapons and the threat of
    nuclear terrorism are persisting global concerns.  For this reason, the United Nations Security
    Council has imposed restrictions on the supply, sale or transfer of
    nuclear-related goods to various countries, including Iran.  In order to honour its international
    obligations, Canada has enacted legislation that restricts the exportation to
    Iran of certain goods, including devices known as pressure transducers, if
    they meet certain technical specifications.

[2]

Pressure transducers are devices that convert a
    pressure measurement into an electrical signal that can be recorded or
    displayed on a computer.  They have a
    wide variety of lawful commercial applications (
e.g.
use in medical sterilization, food freeze drying or vacuum
    drying processes).  They are also an
    essential component in the enrichment of uranium through the gas centrifugation
    method.

[3]

The appellant, Mahmoud Yadegari, was charged on a
    ten-count information with offences related to the attempted exportation of two
    pressure transducers to a person in Iran.  The transducers were dual-use goods, in that they were suitable for
    use in several lawful commercial applications and in the process of uranium
    enrichment.  It was the Crowns position
    at trial that the transducers were subject to restrictions designed to prevent
    the exportation of nuclear-related items from Canada to Iran.

[4]

After a trial by judge alone, the appellant was
    convicted of the following nine offences:

1)

Count 1  attempting to knowingly sell, supply or
    transfer restricted goods to a person in Iran or for the benefit of Iran,
    without first obtaining a certificate of exemption, contrary to the
United Nations Act
, R.S.C. 1985, c. U-2
    (the UN Act) and the
Regulations Implementing
    the United Nations Resolutions on Iran
, SOR/2007-44 (the Iran
    Regulations) (the UN Offence);

2)

Count 2  attempting to export or transfer restricted
    goods without first obtaining an export permit, contrary to the
Export and Import Permits Act
, R.S.C.
    1985, c. E-19 (the EIPA) and associated regulations;

3)

Counts 3, 4 and 5  failing to report the restricted
    nature of the goods in question, or their proper value, and making a false or
    deceptive statement in writing to customs officials, contrary to the
Customs Act
, R.S.C. 1985, c. 1 (2nd
    Supp.);

4)

Count 6  attempting to export controlled nuclear
    equipment without first obtaining an export licence, contrary to the
Nuclear Safety and Control Act
, S.C.
    1997, c. 9 (the NSCA) and associated regulations; and

5)

Counts 7, 8 and 10  knowingly making a false waybill
    and knowingly using a forged waybill and end-use certificate when attempting to
    export the pressure transducers from Canada, contrary to the forgery provisions
    of the
Criminal Code
, R.S.C. 1985, c.
    C-46 (the Code).

[5]

The appellant was acquitted of count 9, an additional
    count of forgery (making a false end-use certificate) under the Code.

[6]

After 31 months credit for pre-sentence detention, the
    appellant was sentenced to 20 months imprisonment.

[7]

The appellant appeals his convictions on counts 1, 2, 3
    and 6 (the attempt to export and the failure to report the exportation of the
    transducers).  He also appeals his sentence.

II.        Restrictions on the
    Exportation

of Pressure
    Transducers

[8]

In 1970, the
Treaty
    on the Non-Proliferation of Nuclear Weapons
, 1 July 1968, 729 U.N.T.S. 161,
    came into force.  The parties to the Treaty
    undertake to co-operate in facilitating the application of safeguards
    introduced by the International Atomic Energy Agency (the IAEA) to curtail
    the proliferation of nuclear weapons and nuclear-related material.  Canada and Iran are both parties to the Treaty.

[9]

It is undisputed that Iran has failed to comply with
    its treaty obligations, prompting repeated resolutions by the United Nations Security
    Council calling on Iran to honour its obligations and halt its uranium
    enrichment program.  In December 2006, UN
    Security Council Resolution 1737, UNSCOR, 2006, UN DOC. S/RES/1737, imposed the
    first sanctions on Iran in connection with its ongoing failure to adhere to the
    Treaty.  Under this Resolution, member
    states are required to take necessary measures to prevent the supply, sale or
    transfer of certain nuclear-related, dual-use goods by their nationals, to or
    for the benefit of Iran.  The proscribed goods
    are identified in the IAEA Information Circular,
Communications Received from Certain Member States Regarding Guidelines
    for Transfers of Nuclear-related Dual-use Equipment, Materials, Software and
    Related Technology
, UNIAEA OR, 2006, UN Doc. INFCIRC/254/Rev. 7/Part 2,
    (Circular 254).  Pressure transducers
    that meet certain technical parameters enumerated in Circular 254 (the
    Specifications) are among the proscribed products.

[10]

Canada promulgated the Iran Regulations under the
    authority of the UN Act in order to comply with its obligations under
    Resolution 1737.  Section 3 of the Iran
    Regulations makes it an offence in Canada to knowingly sell, supply or
    transfer, directly or indirectly, certain products to any person in Iran or for
    the benefit of Iran, including the pressure transducers described in the
    Specifications set out in Circular 254.

[11]

In addition, the exportation, transfer or attempted
    exportation or transfer of pressure transducers that meet essentially the same
    technical characteristics described in the Specifications is prohibited under
    the NSCA and the EIPA, and the regulations associated with those statutes, unless
    applicable licences, permits, certificates or other regulatory approvals are
    obtained first.  Unlike the provisions of
    the Iran Regulations, these prohibitions apply to the exportation, transfer or
    attempted exportation or transfer of the prescribed transducers to any
    destination.

[12]

Further, under the
Reporting
    of Exported Goods Regulations
, SOR/2005-23, associated with the
Customs Act
, all exported restricted
    goods and goods having a value over $2,000 must be reported in writing.  It is also an offence under the
Customs Act
to make a false or deceptive
    statement orally or in writing to Canadian customs officials.  Once again, these provisions are not
    Iran-specific.

[13]

The exportation of pressure transducers that meet the
    Specifications is therefore restricted under each of the Iran Regulations, the
    NSCA and the EIPA.  Section 3.A.7 of Circular
    254 delineates the following Specifications concerning restricted pressure
    transducers:

Pressure transducers capable of measuring absolute
    pressure at any point in the range 0 to 13 kPa
[1]
and having both of the following characteristics:

a. Pressure sensing
    elements made of or protected by aluminium, aluminium alloy, nickel, or nickel
    alloy with more than 60% nickel by weight;
and

b.

Having either of the following characteristics:

(i)   A
    full scale of less than 13 kPa and an accuracy of better than
±
1%
    of full scale;
or

(ii) A
    full scale of 13 kPa or greater and an accuracy of better than
±
130
    Pa.

[Emphasis
    in original.]

[14]

In order to attract export restrictions, a pressure
    transducer must satisfy all three of the prerequisites of the Specifications:
    (1) it must be capable of measuring absolute pressure at any point in the range
    0 to 13 kPa; (2) it must have pressure sensing elements made of or protected
    by a specified metal or metal alloy (aluminum, aluminum alloy, nickel or nickel
    alloy), with more than 60% nickel by weight (the nickel content requirement);
    and (3) transducers with a full scale of
less
    than
13 kPa must have an accuracy of  better than
±
1% of full scale, and
    transducers with a full scale of 13 kPa
or
    greater
must have an accuracy of better than
±
130 Pa (the accuracy
    requirements).

III.      Facts

[15]

At trial, most of the pertinent facts were
    uncontested.  The issue for the trial
    judge was what inferences could reasonably be drawn from the undisputed facts.

(1)

Appellants Background and Conduct

[16]

The appellant was born in Iran and immigrated to Canada
    about 13 years ago.  He is 37 years of
    age, has no prior criminal record, is married, and has a two-year old son.  He is a Canadian citizen.

[17]

The appellant was educated in computer science in Iran
    and Toronto.  When he was unable to
    secure employment in that field, he became a truck driver.  In late 2005, he incorporated N & N
    Express Inc., which operated the two transport trucks used in the appellants trucking
    business.

[18]

Over time, the appellant attempted to expand his business
    to include the exportation of goods from North America to the Middle East and
    Eastern Europe.  The appellant received
    requests from abroad for various products and sought price quotes from
    suppliers, which he then forwarded to prospective overseas purchasers for
    approval.  Most of the goods relating to these
    quotations were unrelated to uranium enrichment and were not subject to any
    export restrictions.

[19]

The evidence at trial included voluminous e-mail
    communications authored or received by the appellant (almost 300 pages).  The product requests received by him included
    e-mail requests from Nima Tabari.  Based
    on his e-mail address, Mr. Tabari was associated with a company called TSI
    Limited (TSI).  In communications with
    a supplier, the appellant described TSI as an engineering, procurement and
    construction contractor on a natural gas project off the coast of Iran.

[20]

Expert evidence at trial indicated that two e-mails
    sent to the appellant from Mr. Tabari in April 2009 originated from computers
    in Iran.  The experts were unable to
    determine the place of origin of Mr. Tabaris other e-mails to the appellant.

[21]

Between December 2008 and April 2009, the appellant
    attempted to obtain several items from a number of different suppliers.  This included attempts to acquire pressure
    transducers from three different suppliers located in the United States and
    Europe.   Eventually, the appellant
    purchased ten pressure transducers from Alpha Controls and Instrumentation, the
    distributor for transducer manufacturer Setra Systems, Inc. (Setra), at a
    cost of approximately $1,109 each.

[22]

On March 4, 2009, the appellant attended at the offices
    of an international freight forwarding company, DHL Express, and dropped off a
    package for shipment addressed to Keft Trading Co. in Dubai, the United Arab
    Emirates.  The package contained two
    Setra pressure transducers.  However, the
    labels identifying the devices as Setra transducers had been removed, both from
    the box that contained the transducers and from the devices themselves.  Instead, the transducers were marked simply as
    Sample 1 and Sample 2.

[23]

The proposed shipment was accompanied by a DHL Express
    waybill and a commercial invoice.  Both
    documents were signed and dated by the appellant.  They described the contents of the box as
    Setra Electrical Accessory and ascribed a value of $100 to the goods.  Subsequently, after the shipment was detained
    by the authorities, the appellant was requested to complete an export
    declaration form.  The appellant
    completed the form, describing the devices as pressure gauges and attributing
    a value of $1,309 to them.

[24]

Neither the appellant nor his company, N & N
    Express Inc., applied for or obtained the requisite approvals or authorizations
    under the Iran Regulations, the EIPA and the NSCA for the exportation of the
    transducers.  Nor did they report any
    export of restricted or controlled goods, or goods valued at more than $2,000,
    to Canadian customs authorities.  In the
    event, the authorities detained the shipment and the transducers did not leave
    Canada.

[25]

The appellant was arrested at his home on April 16,
    2009.  The police searched his premises
    and his home computer and a number of items were seized, including the e-mail
    communications mentioned above.

(2)

Directed Verdicts Motion

[26]

At the conclusion of the Crowns case, the defence
    moved for directed verdicts on counts 1, 2, 3, 6 and 9.  With respect to the attempt to export and the
    failure to report the exportation of the transducers (counts 1, 2, 3 and 6),
    the defence argued that the Crown had failed to prove that the transducers met
    the nickel content and accuracy requirements of the Specifications, with the
    result that the transducers were not subject to export restrictions.

[27]

The trial judge rejected this argument.  She held that the transducers have three pressure
    sensing elements, two of which are made of a nickel alloy with more than 60 per
    cent nickel by weight, thus satisfying the nickel content requirement.  She also concluded that the transducers meet
    the accuracy requirements of the Specifications.  She therefore ruled that there was some
    evidence that the transducers have each of the requisite characteristics under
    the Specifications, thus triggering the applicable export restrictions.

[28]

The defence next argued that there was insufficient
    evidence to establish that the appellant had made the forged end-use
    certificate that he furnished to authorities in relation to the transducers (count
    9).  The trial judge disagreed.  In her view, based on the contents of the
    appellants home computer discovered by the police, there was some evidence
    that the appellant knew that some of the contents of the end-use certificate
    were false and that he had made the forged certificate.

[29]

In the result, the trial judge ruled that there was
    some evidence on which a reasonable jury properly instructed could convict on
    each of the requisite elements for all of the counts on the information.  She therefore dismissed the directed verdicts
    motion in its entirety.

(3)

Trial Judges Findings at Trial

[30]

At trial, the trial judges central findings were as
    follows:

1)

for the reasons set out in her ruling on the directed
    verdicts motion, she was satisfied beyond a reasonable doubt that the
    transducers had the characteristics set out in the Specifications;

2)

the appellant was attempting to locate various goods,
    including the pressure transducers at issue, as specified by his client, Nima
    Tabari, for TSI;

3)

Mr. Tabari was in Iran when he sent two e-mails to the
    appellant in April, 2009;

4)

the appellant knew that Mr. Tabari was in Iran and that
    TSI was said to be managing a project in Iran;

5)

on numerous occasions, the appellant was reminded by
    suppliers that the vendor of the transducers needed to know

the

end
    destination of the product, of his obligation to

comply

with

export and customs restrictions, including
    those in force in Canada, and that regulations restricted the export of
    transducers;

6)

the appellant knew or was wilfully blind to the fact
    that the transducers had the characteristics that made them restricted goods
    under the UN Act;

7)

the appellant knowingly attempted to sell or export the
    transducers to Mr. Tabari, a person in Iran, without a certificate of exemption
    under the Iran Regulations (count 1), an export permit under the EIPA (count
    2), and an export licence under the NSCA (count 6);

8)

the appellant failed, without lawful excuse, to report
    the export of restricted goods as required under the
Customs Act
(count 3).  He
    also failed to report goods having a value in excess of $2,000, contrary to the
Customs Act
(count 4); and

9)

in his efforts to export the transducers to Iran, the
    appellant made a false or deceptive statement in writing to Canadian customs
    officials (count 5), forged and used a forged express waybill (counts 7 and 8),
    and used a forged end-use certificate (count 10).

[31]

Based on these findings, the trial judge convicted the
    appellant on all counts, except count 9, the charge of forging an end-use
    certificate with the intent that it be acted upon as genuine.

IV.      Issues

[32]

I would frame the issues on the conviction appeal in
    this fashion:

(1)

Did the trial judge err by concluding that the
    transducers satisfied (a) the nickel content requirement and (b) the accuracy
    requirements, of the Specifications?

(2)

Is the appellants conviction on the UN Offence
    unreasonable?

[33]

There are two main issues on the sentence appeal:

(1)

Did the trial judge err by finding that the pressure
    transducers were intended for use in Irans nuclear enrichment program and by
    treating this as an aggravating factor on sentencing?

(2)

Is the appellants sentence harsh and unreasonable in
    all the circumstances?

V.        Analysis

A.        Conviction
    Appeal

(1)       Interpretation
    of the Specifications

[34]

On appeal, the appellant admits that he attempted to
    export the pressure transducers from Canada. However, he renews his argument,
    advanced at trial, that the nickel content and the accuracy requirements of the
    Specifications do not apply to the transducers that he attempted to export and,
    therefore, that the transducers are not restricted goods within the meaning of
    the Iran Regulations and related legislation.

(a)

Nickel content requirement

[35]

The process of uranium enrichment involves exposure to
    corrosive gases.  Thus, in order for a
    pressure transducer to be used in this process, it must be made of a substance
    that is resistant to gas corrosion, like nickel or a nickel alloy.

[36]

There is no issue that parts of the seized transducers
    contain nickel alloy.  However, the
    appellant argues that the Crown failed to prove that the pressure sensing
    elements in the transducers contain more than 60% nickel by weight, as
    required by the nickel content requirement of the Specifications.

[37]

The evidence at trial concerning the technical
    characteristics of the transducers was provided by Kevin Bourbeau, a Setra
    engineering manager. Mr. Bourbeau said that the Setra transducers measure
    pressure using a diaphragm and an electrode, which convert the pressure in the
    gas into a DC voltage that can be read by a computer as a measurement of the
    amount of pressure. Mr. Bourbeau indicated that the Setra model of the seized
    transducers has a pressure sensing element comprised of three welded parts: the
    tube, the housing and the diaphragm. The housing and the tube are made of
    Inconel 600  a highly corrosive-resistant nickel alloy  while the diaphragm
    is made of Inconel 718, which is 50 to 55 per cent nickel by weight.

[38]

In her ruling on the directed verdicts motion, the
    trial judge stated that the transducers have three pressure sensing elements
    and concluded that there was no requirement that each of these elements be made
    of a metal or metal alloy with more than 60 per cent nickel by weight.  Rather, as two pressure sensing elements,
    the housing and the tube, have more than 60 per cent nickel by weight, the
    nickel content requirement was met.  The
    trial judge put it this way:

Two of
the
    three pressure sensing elements
are made of an alloy with seventy-two per
    cent nickel by weight which is sufficient compliance with [the
    Specifications].  I am satisfied that
the transducers have two pressure sensing
    elements made of a nickel alloy with more than sixty per cent nickel by weight.
[Emphasis added.]

The trial judge reiterated these conclusions at the end of the
    trial.

[39]

The appellant contends that by referring to three
    pressure sensing elements, the trial judge misapprehended Mr. Bourbeaus
    evidence regarding the nature of the pressure sensing devices in the Setra
    transducers that the appellant sought to export.  The appellant then submits that the trial
    judge erred in her interpretation of the nickel content requirement by holding
    that it requires that only some part, rather than the whole, of a transducers pressure
    sensing elements be made of a metal or metal alloy that meets the required
    percentage of nickel by weight.  I would
    reject these arguments.

[40]

For convenience, I restate the relevant part of the
    Specifications:

Pressure transducers capable of measuring absolute
    pressure at any point in the range 0 to 13 kPa and having  the following
    [characteristic]:

a.

Pressure sensing elements made of or protected by [a
    specified metal or metal alloy] with more than 60% nickel by weight;

[41]

Notwithstanding the trial judges mistaken reference to
    three pressure sensing elements, I am not persuaded that she misapprehended
    Mr. Bourbeaus evidence in any material fashion.  As the Crown points out, it appears that the
    terms pressure sensing elements and pressure sensing element were used
    somewhat interchangeably at trial. More importantly, when the trial judges
    ruling regarding the nickel content requirement is read as a whole, I think it
    manifest that she was alive to the real issue, namely, whether the
    Specifications require that those parts of a transducer that perform a pressure
    sensing function be wholly or only partially made of or protected by a metal or
    metal alloy that satisfies the requisite percentage of nickel by weight.

[42]

As the trial judge noted in her ruling on the directed
    verdicts motion, there was no evidence at trial of the relative weight of the
    constituent parts of the pressure sensing device in each of the seized
    transducers.  Thus, if the phrase
    pressure sensing elements is interpreted to mean the whole of the three-part
    element, that is, all three parts combined, there was no evidence at trial on
    which it could be inferred that the constituent parts of the pressure sensing
    device in each of the seized transducers equals a total composition of greater
    than sixty per cent nickel by weight.

[43]

These observations by the trial judge indicate that she
    appreciated that the requisite inquiry had to be focused on the meaning of
    subparagraph (a) in its entirety, including, especially, on the meaning of the
    phrase pressure sensing elements.  She
    concluded that if the intent was to impose a nickel content requirement on the
    whole of a pressure sensing device in a transducer, the applicable language in
    subparagraph (a) would refer to a pressure sensing element, rather than
    elements.  I agree.

[44]

Subparagraph (a) must be construed according to the
    well-established rules of statutory interpretation.  As the Supreme Court has repeatedly confirmed,
    the modern approach to statutory interpretation requires that: [T]he words of
    an Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament: see for example,
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited Partnership v. Rex
,
    [2002] 2 S.C.R. 559, at para. 26.  This
    contextual and purposive approach focuses on the plain meaning of the words
    used in an enactment, in the context of the purpose of the legislation and of
    the provision under scrutiny.

[45]

In this case, the use of the plural elements, rather
    than the singular element, in subparagraph (a), suggests that the nickel
    content requirement applies to those parts of a transducer that serve a
    pressure sensing function.  There is no
    language in subparagraph (a) indicating that all those parts, or the unit as
    a whole, must meet the nickel content requirement.  Nor is there any language in subparagraph (a)
    requiring that pressure sensing elements only consist of, or be protected by,
    metal or a metal alloy that is more than 60% nickel by weight. In contrast,
    Circular 254 describes certain restricted valves as being
[w]holly
made of or lined with [a specified metal or metal allow]
    containing more than 60% nickel by weight (emphasis added): s. 3.A.3(c). If a
    similarly narrow, and more restrictive, requirement had been intended with
    respect to pressure transducers, it can be expected that this intention would
    have been expressed in clear and unambiguous language.

[46]

The appellant argues that the trial judges
    interpretation of the nickel content requirement is inconsistent with the
    purpose of the Specifications.  He maintains
    that, on the trial judges interpretation of subparagraph (a), a transducer
    would be caught by the export restrictions where its pressure sensing device is
    made entirely of tin, but also contains a single screw that is composed of 60%
    nickel, notwithstanding that the transducer would be useless for enriching
    uranium. I agree that this cannot be the intent of the nickel content
    requirement.  It would effect an absurd
    and unintended result by sweeping into the nickel content requirement
    transducers that have no capacity for use in nuclear-related applications.

[47]

On the other hand, the appellants contention that the
    nickel content requirement is concerned only with the composition of the
whole
of a pressure sensing device can
    also lead to a skewed  and potentially far more dangerous  result.  For example, under the appellants
    construction of the nickel content requirement, a transducer that has a pressure
    sensing device consisting of a diaphragm that is made entirely of nickel, but tube
    and housing components made of corrosive plastic, would fall outside the
    Specifications.  Yet, such a transducer potentially
could
be used for uranium enrichment.  On this example, the narrow construction of
    subparagraph (a) urged by the appellant would defeat the protective aims of
    that subparagraph and of the Specifications as a whole.

[48]

The Specifications are intended to establish categories
    of restricted goods in order to reduce the threat of nuclear proliferation.  To facilitate this objective, subparagraph
    (a) targets transducers that are capable of use in uranium enrichment
    processes.  These protective purposes of
    the Specifications and of subparagraph (a) in particular, argue strongly
    against an interpretation of subparagraph (a) that unduly narrows its reach.

[49]

On the evidence in this case, it is beyond dispute that
    the pressure sensing devices in the seized transducers are comprised of
    sufficient nickel alloy components so as to render the transducers capable of
    use in a uranium enrichment process.  In
    my view, it is precisely this type of pressure transducer that the export
    restrictions are intended to capture.

[50]

I therefore conclude that the plain and ordinary
    meaning of the language employed in subparagraph (a), the purpose of the
    Specifications as a whole, and the object of subparagraph (a) in particular,
    compel the conclusion that the transducers in this case satisfy the nickel
    content requirement of the Specifications.

(b)

Accuracy requirements

[51]

With respect to the accuracy requirements, the
    Specifications identify:

Pressure transducers
    capable of measuring absolute pressure at any point in the range 0 to 13 kPa
    and

b.

Having
    either of the following characteristics:

(i)

A full scale of less than 13 kPa and an accuracy of
    better than
±
1% of full scale;
or

(ii)

A full scale of 13 kPa or greater and an accuracy of
    better than
±
130 Pa.

[Emphasis
    in original.]

[52]

The trial judge made three critical findings concerning
    the accuracy requirements of the Specifications.  First, she held that the seized transducers
    have a full scale greater than 13 kPa.  Thus, the accuracy requirement in subparagraph (b)(ii) of the
    Specifications, which requires that the transducer in question have an
    accuracy of better than
±
130 Pa, is engaged.

[53]

Second, she held that the intent of subparagraph
    (b)(ii) is that the relevant transducers have an accuracy better than
±
130
    Pa when measuring pressure in the range from 0 to 13 kPa.

[54]

Third, she indicated that, unlike the accuracy
    requirement in subparagraph (b)(i), which is focused on accuracy measured as a
    percentage of full scale, subparagraph (b)(ii) is concerned with pressure
    sensing devices where only a portion of its range will be within the area of
    concern.  Consequently, the accuracy
    requirement under subparagraph (b)(ii) is satisfied even where a transducer only
    meets the specified level of accuracy in the relevant pressure range (0 to 13
    kPa).

[55]

During oral argument, the appellant did not pursue his
    attack on these findings by the trial judge, relying instead on his written
    submissions.  In those submissions, he
    maintained that the trial judge erred in her interpretation of the accuracy
    requirements: (1) by holding that they applied only to the 0 to 13 kPa portion
    of the transducers overall range of measurement; and (2) by concluding that
    the accuracy requirement in subparagraph (b)(ii) could be met on measurement of
    only one of three bases of accuracy.  These
    complaints may be dealt with summarily.

[56]

In a supplementary agreed statement of facts filed at
    trial, the parties agreed that: To operate safely and to optimize productivity
    of enriched uranium, the gas pressure inside a centrifuge must be kept below 13
    kilopascals [13 kPa].  It is for this
    reason, in my opinion, that subparagraph (b) of the Specifications is concerned
    only with the accuracy of pressure transducers within the range suitable for
    use in uranium enrichment processes, that is, between 0 and 13 kPa.  As the parties essentially agreed, it is this
    range that is critical in the centrifugal uranium enrichment process.

[57]

That this is the focus of the accuracy requirements is
    reinforced by the introductory language of the Specifications, which identifies
    the restricted goods as pressure transducers capable of measuring absolute
    pressure at any point in the range 0 to 13 kPa.  It follows that the accuracy of transducers
    operating outside the range of 0 to 13 kPa is irrelevant to the mischief at
    which the accuracy requirements are directed.

[58]

I therefore agree with the trial judge that, while a seized
    transducer might have the capacity to measure beyond the range of 0 to13 kPa,
    the area of concern that is addressed by the accuracy requirements is the
    accuracy of a pressure transducer operating within the range of 0 to 13 kPa.

[59]

I would also reject the appellants claim that the
    accuracy testing of the seized transducers was deficient.  In my view, the trial judge was correct to
    reject this contention.

[60]

A technical note at the bottom of the Specifications
    indicates that accuracy for the purpose of the Specifications
includes
non-linearity, hysteresis and
    repeatability at ambient temperature (emphasis added).
[2]
According to Mr. Bourbeau, the measurement of
    the accuracy of the transducers in this case was done as a percentage of
    reading, a method that measures accuracy at a given pressure.  He said that non-linearity, one of the three
    listed factors in the technical note, is built into this methodology.  Thus, the accuracy testing of the seized
    transducers included measurement of accuracy based on one of the factors
    identified in the technical note.

[61]

The trial judge held that the term includes, when
    used in this context, clearly means one of the listed items in the technical
    note at the end of the Specifications.  The appellant submits that the use of the conjunction and between the
    factors listed in the technical note suggests that accuracy testing must
    include measurements of accuracy based on all three listed factors.

[62]

I disagree.  The
    term and can be interpreted as joint or as joint and several, depending on
    the context.  Where the term is seen as
    joint and several, all the possibilities may be, but need not be, included:
    Ruth Sullivan,
Statutory Interpretation
(Concord, Ontario: Irwin Law, 1997) at p. 88.  In my view, the use of the word includes in the technical note clearly
    suggests that the word and should be interpreted as joint and several.  Moreover, a plain and ordinary interpretation
    of the word includes as used in the technical note, suggests that accuracy measurements
    may, but need not, be based on the listed factors.  In any event, in this case, non-linearity,
    one of the listed factors, was encompassed in the accuracy testing that was
    undertaken.

[63]

Finally, I note that the appellant does not contest
    that the seized transducers are capable of measuring absolute pressure within
    the range of 0 to 13 kPa.  On the
    evidence at trial, the accuracy of the transducers within that range fell
    easily within the accuracy requirement of subparagraph (b)(ii).

(c)

Conclusion concerning interpretation

of
    the Specifications

[64]

I would therefore reject the appellants challenge to
    the trial judges interpretation of the Specifications.  The seized transducers are of a type that is
    subject to export restrictions under the relevant statutory framework.

(2)       Reasonableness of Conviction

on UN Offence

[65]

The test for determining the reasonableness of a
    verdict is well-settled.  If a properly
    instructed jury, acting judicially, could reasonably have rendered the verdict
    in question, it cannot be said to be unreasonable.  See for example,
R. v. Biniaris
, [2000] 1 S.C.R. 381.

[66]

The Crowns case against the appellant in relation to
    the UN offence was largely circumstantial.  The appellant did not testify or offer any evidence on his own behalf.

[67]

As I have already explained, the trial judge was correct
    to hold that the transducers in this case are subject to export
    restrictions.  Further, it was undisputed
    at trial that the appellant did not obtain the requisite certificate of
    exemption prior to attempting to export the transducers.  The only remaining issue, therefore, is
    whether the Crown established beyond a reasonable doubt at trial that the
    appellant knowingly sought to supply the transducers to a person in Iran.
[3]

[68]

The appellant argues that since the evidence at trial
    failed to prove either the location of the intended purchaser of the
    transducers or the appellants knowledge of that location beyond a reasonable
    doubt, the appellant should have been acquitted on count 1.

[69]

Again, I disagree. In my opinion, viewed cumulatively,
    there was ample evidence at trial to ground the trial judges conclusion that
    the appellant knowingly attempted to supply the transducers to a person in Iran
    and that he had the requisite level of knowledge concerning the intended
    destination of the transducers.

[70]

First, as the Crown points out, apart from various
    product suppliers, Mr. Tabari was the only individual with whom the appellant
    communicated about price quotations and specifications for products, including pressure
    transducers.  More particularly, in a
    series of e-mails between December 2008 and January 2009, the appellant and Mr.
    Tabari appeared to confirm the details of an order for pressure transducers and
    the appellant forwarded inquiries received from various suppliers to Mr.
    Tabari, seeking instructions on how to respond. As found by the trial judge,
    these e-mails established that Mr. Tabari was the appellants client.

[71]

Second, the trial judge accepted the Crowns expert
    evidence that at least two of Mr. Tabaris e-mails to the appellant originated from
    Iran.

[72]

Third, Mr. Tabaris e-mails indicated that he was
    associated with TSI and that TSI was involved in a project in Iran.  In his e-mail communications with potential
    suppliers, the appellant twice indicated that he wished to acquire products for
    a project in Iran and, on one occasion, identified TSI as the project manager
    for a project in Iran.

[73]

Fourth, the appellants e-mail communications, many of
    which pre-dated his attempt to export the transducers on March 4, 2009,
    disclosed multiple inquiries for goods, including transducers, destined for
    Iran.  These e-mails included:

(1)

an e-mail to the appellant dated January 13, 2009, in
    which Mr. Tabari indicated that the appellant should consider sending the
    transducers to Dubai or To Iran;

(2)

an e-mail to the appellant dated February 17, 2009, in
    which a valve supplier declined to quote for the provision of valves destined
    for an embargoed country, namely, the South Pars Field in the Iranian sector
    of the Persian Gulf; and

(3)

an exchange of e-mails during the period February 19,
    2009 to February 21, 2009, between the appellant and Ali Sadeghianpour of
    Samson Controls Incorporated, in which Mr. Sadeghianpour requested information
    concerning the intended end-user of valves for which the appellant had sought
    quotes. The appellant replied that the valves were destined for Oil field
    Industries in the Iran-South

pars
    zone

and Mr
. S
adeghianpour responded that Based on UN rules and
    restrictions, South-Gas pars is not in the list of restricted companies to work
    with.

[74]

Fifth, Mr. Sadeghianpour testified at trial that he met
    with the appellant on February 25, 2009.  He said that the appellant told him that the products he was interested
    in were destined for a project in Iran, that the involved procurement and
    construction company was TSI, a company with a Persian or Farsi name, and that
    the National Iranian Gas Company may have been involved.

[75]

In addition, in an April 2009 e-mail response to a
    query from a valve supplier about the intended end destination for the
    requested valves, the appellant stated that his client was in Iran.

[76]

Sixth, on March 4, 2009, the day on which he attempted
    to export the transducers to Iran, the appellant was asked by the sales
    representative of a German supplier to complete a Customer Certification and Letter
    of Assurance regarding the intended use of the goods that the appellant sought
    to purchase.  The contents of that
    document make it abundantly clear that the appellant was aware of export
    control regulations and restrictions on nuclear development-related goods destined
    for Iran or for Iranian nationals. In completing the same document on March 5,
    2009, the appellant expressly agreed not to transfer, export or re-export any
    products acquired from the supplier to a series of countries, including Iran.

[77]

Finally, the voluminous e-mails introduced at trial
    contain repeated supplier notifications to the appellant of regulations and
    restrictions applicable to the exportation of certain products to embargoed
    countries, including Iran.  They also
    reveal numerous efforts by the appellant to deceive suppliers as to the
    intended destination of products for which he sought price quotes.

[78]

This evidence was more than sufficient to support the
    trial judges conclusion that, on the totality of the evidence, the Crown had
    established that the appellant knowingly attempted to sell products [restricted
    under the Iran Regulations] to a person in Iran without obtaining the
    requisite certificate of exemption.  The
    appellants conviction on the UN offence was therefore reasonable.

B.        Sentence Appeal

[79]

The appellant challenges the sentence imposed by the
    trial judge on several grounds.  He
    argues, first, that the trial judge erred by finding that the purpose of the
    exportation of the pressure transducers was the enrichment of uranium in Iran.  The appellant submits that this was not
    established beyond a reasonable doubt on the evidence at trial and, therefore,
    that the trial judge erred by treating it as an aggravating factor on
    sentencing.  Without a link to Irans
    uranium enrichment program, the appellant says, his attempted exportation of
    the transducers is analogous to ordinary smuggling, an offence which he says
    typically results in sentences of less than two years imprisonment and stiff
    fines.

[80]

In contrast, the Crown maintains that, even without
    proof of a nexus between Irans nuclear enrichment program and the appellants
    attempted exportation of the transducers, the sentence imposed was fit having
    regard to the serious nature of the appellants conduct and his high degree of
    moral blameworthiness. The Crown emphasizes that, on the trial judges
    findings, the appellant knew or was wilfully blind to the fact that the
    transducers were restricted goods and that they were destined for Iran.

[81]

In support of his submission, the appellant relies
    principally on the following comments by the trial judge near the outset of her
    sentencing reasons:

Let me first clarify my findings about Mr.
    Yadegaris proven level of knowledge.  Mr. Yadegari knew that Mr. Tabari did not want to be forthcoming about
    where the transducers were ultimately going and how they were to be used, hence
    the falsified end-use certificate.  Mr.
    Yadegari knew that Mr. Tabari was in Iran.  Mr. Yadegari knew or was wilfully blind about the properties of these
    pressure transducers.  Mr. Yadegari made
    a false statement to Customs, forged a waybill and used a forged end-use
    certificate in his attempts to get these transducers to Iran.  These are not the actions of a person who
    believes the product is for a legitimate purpose, and the only illegal purpose
    for these transducers is the enrichment of uranium.

[82]

In this passage, the trial judge underscored her
    previous findings that Mr. Yadegari knew that Mr. Tabari was in Iran and that
    he knew or was wilfully blind about the restricted nature of the pressure
    transducers.  She then briefly reviewed
    the appellants actions in attempting to get these transducers to Iran and
    stated, These are not the actions of a person who believes the product is for
    a legitimate purpose, and the only illegal purpose for these transducers is the
    enrichment of uranium.

[83]

However, on the evidence, all that was established was
    that the transducers were intended for delivery to Mr. Tabari or TSI in Iran,
    that Mr. Tabari was secretive about their intended end-use and that, to the
    appellants knowledge, the transducers were subject to export restrictions.
    While this may have supported the inference that the transducers had some
    illegitimate purpose, the evidence provided no basis for the trial judge to infer
    that the only illegal purpose for the transducers was the enrichment of
    uranium and, more importantly, that the appellant was aware of this presumed
    tie to uranium enrichment.

[84]

In my opinion, therefore, in embarking as she did on
    her sentencing analysis, the trial judge erred.  First, as Crown counsel on appeal responsibly acknowledged during oral
    argument, there was no demonstrated link between the appellants attempted
    exportation of the transducers and the Iranian governments uranium enrichment
    program. Second, knowledge of a prospective unlawful use of the transducers is
    not the same as actual knowledge of the specific unlawful purpose of use of the
    transducers in Irans nuclear enrichment program.

[85]

I note that the trial judge herself later held in her
    sentencing reasons:

I accept that
    Mr. Yadegaris focus was on the money he could make.

I
    accept that Mr. Yadegari was not intentionally trying to assist Iran in the
    development of its nuclear program.
There would be a very different set of charges against Mr. Yadegari were
    the Crown in possession of this type of evidence.  However, the fact that
Mr. Yadegari was

blinded by
    greed and did not consider the potentially devastating consequences of his
    actions
does not mean this Court will ignore them.  [Emphasis added.]

[86]

The appellants sentencing should therefore have
    proceeded on the basis that, motivated by greed, the appellant failed to comply
    with export restrictions and regulations applicable to the transducers and was
    reckless as to how the transducers were to be used.  In my view, these factors alone compel a
    significant sentence of imprisonment.

[87]

The appellants remaining submissions regarding
    sentence must be understood in the context of the sentences imposed by the
    trial judge on each of the counts on which the appellant was convicted.  Her division was as follows:

Count 1  UN offence

8 months imprisonment,
          after 31 months credit for pre-sentence detention

Count 2  EIPA offence

20 months
          imprisonment, concurrent to count 1

Count 3
Customs Act
, fail to report restricted
          goods

1 month imprisonment,
          concurrent to

count 1

Count 4
Customs Act
, fail to report value of
          goods

1 month imprisonment,
          concurrent to

count 1

Count 5
Customs Act
, making a false and
          deceptive statement

6 months imprisonment,
consecutive
to

count 1

Count 6  NSCA offence

6 months imprisonment,
          concurrent to

count 1

Count 7  forgery
          (making a false waybill)

6 months imprisonment,
consecutive
to counts 1 and 5

Count 8  using a
          forged document

3 months imprisonment,
          concurrent to

count 1

Count 10  using a
          forged document

6 months imprisonment,
          concurrent to

count 1

TOTAL:

51 months
          imprisonment, less 31 months credit for pre-sentence detention

[88]

Against this backdrop, the appellant makes three
    additional arguments.  First, he submits
    that the trial judge determined that the appellant should be imprisoned for a
    set period of time on the UN Offence, after credit for his pre-sentence
    detention, and then impermissibly worked backward to achieve that end
    result.  This resulted in an effective
    net sentence of imprisonment of 39 months on count 1 (eight months
    imprisonment, plus 31 months credit for pre-sentence detention), a sentence
    that the appellant says bears no relation to the aggravating and mitigating
    factors in this case.

[89]

Second, the appellant maintains that, as there are no
    directly comparable cases in Canada for the purpose of establishing an
    appropriate sentencing range, the range recognized in similar cases in the
    United States affords guidance as to the sentence that should have been imposed
    on the appellant.  The sentences imposed
    in the authorities cited range from a fine and probation, in cases involving
    dual-use items with no proven threat to national security, to five years imprisonment,
    in cases involving contraband intended for military applications and an accused
    who was a senior member of the procurement chain, like Mr. Tabari.  The appellant contends that the effective
    51-month net sentence imposed here falls at the high end of this range,
    notwithstanding the appellants position at the very bottom of the
    procurement chain and the absence of evidence that the transducers were to be
    used for a nuclear purpose.

[90]

Finally, the appellant submits that the sentences
    imposed on counts 4, 5, 7, 8 and 10, those relating to customs and forgery
    offences, were harsh and unreasonable given the nature of the offences at issue
    and the fact that the appellant was a first offender.

[91]

Contrary to the appellants submission, I am not
    persuaded that the trial judge employed a flawed methodology in fashioning an
    appropriate sentence.  Read as a whole,
    her sentencing reasons reveal that she was steadfast in her approach of
    deducting the appropriate credit for pre-sentence detention from the overall sentence
    that she regarded as fit for the UN Offence. This is demonstrated by her discussions
    with counsel after the initial imposition of the sentence, when the trial judge
    made further adjustments to the sentence to correct an inadvertent
    miscalculation of the period of pre-sentence detention. This correction
    advantaged the appellant by affording him full two-for-one credit for his pre-sentence
    detention and by reducing his sentence on the UN Offence from 12 to 8 months
    imprisonment.  In any event, even if the
    trial judge had employed the less desirable approach of considering credit for
    pre-sentence detention before determining the additional custodial part of the
    appellants sentence, this would not have constituted reversible error: see
R. v. Orr
(2008), 2008 C.C.C. (3d) 432
    (B.C.C.A.), at para. 22.

[92]

The remaining grounds advanced by the appellant concern
    the overall appropriateness of the net sentence imposed by the trial
    judge.  The trial judge recognized that
    sentencing in this case was a matter of first impression.  It appears that there have been no previous
    comparable cases in Canada.  Based on the
    cases in the United States cited by the appellant, it also appears that the
    appellants sentence is at the upper end of the range applicable in that jurisdiction
    in similar cases, especially for a first offender.  See for example,
U.S.A. v. Seyed Efterkhari
, Case No. 5:06-CR-516(1)-OLG (N.D. Tex.
    2006);
U.S.A. v. Mohammed v. Fazeli
,
    Docket No. CR-06-185(A)-GHK (N.D. Cal. 2006);
U.S.A. v. Jacques Monsieur
, Case No. 1:09-CR-00186-WS-C (N.D. Ala.
    2010).

[93]

That said, unlike the cases most heavily relied on by
    the appellant, this case did not involve a guilty plea.  Moreover, the trial judge expressly took
    account of the applicable mitigating factors in this case.  For instance, she expressly noted that the
    appellant was a first offender, that he had lost everything as a result of
    his arrest, and that he was not the driving force behind the exportation
    scheme.

[94]

Although I might not have imposed the same overall sentence
    as that of the trial judge, I cannot conclude that it is manifestly unfit
    solely because if falls at the higher end of the sentencing range recognized
    for similar offences in the United States.

[95]

The appellants conduct was serious, especially in relation
    to the UN and the EIPA and the NSCA offences.  The trial judge correctly emphasized that general deterrence was of
    paramount importance, given the potential harm involved in the appellants
    offences.  She also noted that the
    appellant was persistent in obtaining the transducers, as well as quotes for
    many others, and deceptive in his attempt to export them.  She held that the sentence imposed should
    promote a sense of responsibility in the offender, and acknowledge the
    potential harm to the global community.  I agree.

[96]

We are left, then, with the need to consider whether
    some reduction in the appellants sentence is warranted by the trial judges finding,
    absent sufficient proof, that the transducers were to be used for a nuclear-related
    purpose.  In my view, this error does
    warrant a slight adjustment to the sentence imposed on the UN offence.

[97]

In the particular circumstances of this case, including
    the appellants position as a first offender, his subordinate position and role
    compared to that of Mr. Tabari, the consequences already suffered by the
    appellant as a result of his criminal conduct and the Crowns admitted failure
    to prove that the transducers were in fact intended for use in the process of
    uranium enrichment in Iran, it is my opinion that a fit sentence on the UN
    Offence is three years imprisonment.  After credit of 31 months for pre-sentence detention, this results in a
    sentence of five months imprisonment for this offence.

[98]

Finally, I am not persuaded that the sentences imposed
    on counts 4, 5, 7, 8 and 10 are unfit or that the trial judge erred in
    principle in her sentencing analysis on these counts.

VI.      Disposition

[99]

For the reasons given, I would dismiss the conviction
    appeal.  I would allow the sentence
    appeal in part by substituting a sentence of five months imprisonment on count
    1, the UN offence, after credit of 31 months for pre-sentence detention. In all
    other respects, I would not interfere with the trial judges sentencing
    disposition.

RELEASED:

APR 12
    2011                                             E.A.
    Cronk J.A.

MJM                                                           I
    agree M.J. Moldaver J.A.

I
    agree S.E. Lang J.A.

[1]
The term
    kPa refers to kilopascal, a unit of pressure in physics.

[2]
A
    similar technical note appears in the relevant provisions of the
Nuclear Non-proliferation Import and Export
    Control Regulations
, SOR/2000-210, under the NSCA.

[3]
The
    Crown did not argue that the transducers were exported for the benefit of
    Iran.


CITATION:
Renda v. Renda, 2011 ONCA
      290

DATE:  20110412

DOCKET: C51785

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Feldman JJ.A.

BETWEEN

Anamaria Renda

Appellant

and

Nicola Renda

Respondent

Abba Chima, for the appellant

Eric Shapiro, for the respondent

Heard:  April 11, 2011

On appeal from the judgment of Justice Magda of the Superior
          Court of Justice dated January 27, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We are not satisfied that the trial judge made any material errors.  His
    findings of fact are supported by the record and we cannot interfere.

[2]

The appeal is dismissed.  Costs to the respondent in the amount of
    $7,500, inclusive of disbursements and HST.


CITATION: Richmond v. Ontario, 2011
      ONCA 315

DATE: 20110421

DOCKET: C52275

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Feldman JJ.A.

BETWEEN

Gregory Alan Richmond

Plaintiff

and

Her Majesty the Queen, the Ontario Provincial Police,
          Rob Vanderwoude, Robert Graham, Craig Houghton, Stephane Racine

Defendants

Gregory Alan Richmond, appearing in person

James Smith, for the defendants

Heard:  April 14, 2011

On appeal from the judgment of Justice R.M. Thompson of the Superior
          Court of Justice dated May 14, 2010.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal from a trial decision.  That decision turned to a
    large extent on the trial judges findings of fact.  We have only a limited
    jurisdiction to interfere with those findings.  We have considered the
    appellants arguments and the trial record.  We see no error.

[2]

The appeal is dismissed.  No costs.


CITATION: Royal Bank of Canada v. Lukezic, 2011 ONCA
      314

DATE: 20110420

DOCKET: C52487

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Watt JJ.A.

BETWEEN

Royal Bank of Canada

Respondent

and

James Joseph Lukezic, Walker Hall Winery Ltd., Lukezic
          Group Ltd. and Walker Hall Group Ltd.

Appellant

James Joseph Lukezic, acting in person

Milton A. Davis, for the respondent

Robert J. Van Kessell, for BDO Canada Limited, the receiver

Heard: April 19, 2011

On appeal from the judgment of Justice Geoffrey B. Morawetz of
          the Superior Court of Justice dated July 30, 2010.

APPEAL BOOK ENDORSEMENT

[1]

In our view, Morawetz J. accorded the appellant a very full and fair
    hearing. He could find no basis on the material before him to conclude that the
    appellants consent to the receivership order was obtained through fraud. Nor
    was there evidence, at least before him, of the consent being conditioned on an
    advance of $150,000, although that issue may well be the subject of the
    appellants action against his former lawyer. We can see no basis for
    interfering with these findings and as a consequence the appeal must be
    dismissed. Costs to the Bank of $3,000 and to the receiver of $500.


CITATION:
Tolias
(Re), 2011 ONCA 268

DATE: 20110406

DOCKET: C52624

COURT OF APPEAL FOR ONTARIO

Laskin, MacPherson and Sharpe JJ.A.

IN THE MATTER OF:
Helen
Tolias

Helen
Tolias
, acting in person

Toomas

Ounapuu
,
          for the appellant

Paul Burstein,
          as
amicus curiae

Grace
Choi
, for the respondent

Heard:
April 5, 2011

On appeal against the disposition of the Ontario Review Board,
          dated July 15, 2010.

APPEAL BOOK ENDORSEMENT

[1]

As the February 14, 2011 order has superseded the order
    under appeal, this appeal is dismissed as moot.


CITATION: United States of America v. Norman, 2011 ONCA
      327

DATE: 20110427

DOCKET: C52754 & C53025

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Karakatsanis JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the United
          States of America and the Minister of Justice for Canada

Respondents

and

David P. J. Norman a.k.a. Jim Norman

Applicant (appellant)

David Norman, in person

Vincenzo Rondinelli, for the appellant

Nancy Dennison, for the respondents

Heard and endorsed: April 12, 2011

APPEAL BOOK ENDORSEMENT

[1]

There was evidence upon which the extradition judge could commit the
    appellant for extradition. While the appellant claims to have a defence to the
    charges, that is a matter for trial in the United States. Accordingly, the
    appeal is dismissed. As to the judicial review, the Minister has provided
    reasons that address the appellants claims and we see no reviewable error in
    the Ministers reasons. The appellant says that he is now in a position to
    provide further evidence that will show that he should not be surrendered. We
    have no jurisdiction to direct the Minister to receive those submissions. That
    is a matter within his discretion under s. 43(2) of the
Extradition Act
.

[2]

Accordingly, the application for judicial review is dismissed.


CITATION:
United States of
          America v.
Thamby
, 2011
          ONCA 333

DATE: 20110429

DOCKET: C52902 & C52261

COURT OF APPEAL FOR ONTARIO

Laskin, MacPherson and Sharpe JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the United
          States of America

Respondent

and

Ragavan

Thamby

Appellant

Alan D. Gold, for the appellant

Richard A. Kramer, for the respondent

Heard: April 5, 2011

On appeal from the committal order
          of Justice W. Brian Trafford of the Superior Court of Justice, dated May 18,
          2010, and reported at [2010] O.J. No. 3196, and on application for judicial
          review from the decision of the Honourable Rob Nicholson, Minister of Justice
          and Attorney General of Canada, concerning an application brought pursuant to
          s. 58 of the
Extradition Act
, S.C. 1999,
          c. 18, dated October 15, 2010.

Laskin J.A.:

A.

Overview

[1]

Ragavan

Thamby
is a Canadian citizen.  He has appealed
    an order committing him for extradition and applied for judicial review of the
    Justice Ministers order surrendering him to the United States to face fraud
    charges.

[2]

The facts giving rise to these proceedings are
    unusual.  In February 2007, Mr.
Thamby
was arrested and charged in Ontario with multiple
    counts of fraud contrary to the
Criminal
    Code
.  The Crown alleged that Mr.
Thamby
participated in a fraudulent telemarketing scheme
    operating from Canada and targeting elderly residents living in the United
    States.  His lawyer and the Crown
    prosecutor reached a plea agreement to resolve all of these charges.  The agreement was vetted and approved by a
    judge of the Ontario Court of Justice.  Mr.
Thamby
was set to plead guilty and be
    sentenced on July 24, 2009.  Had that
    happened, no extradition proceedings could have been taken against him.

[3]

However, Mr.
Thambys
case
    did not go forward on July 24.  Because
    of a clerical error, the information on which he was to plead went astray.  His case was adjourned to September 2, 2009
    so that
a replacement
information could be issued.  On August 31, two days before Mr.
Thamby
was again set to plead guilty, the Ontario
    prosecutor handling the case learned that back in June the Minister of Justice
    had issued an authority to
proceed
seeking Mr.
Thambys
extradition to the United States for the same
    conduct that founded the Ontario charges.  On September 2, the Crown prosecutor stayed the Ontario charges so that
    the extradition proceedings could go forward.

[4]

Before the extradition judge, Mr.
Thamby
accepted that the evidence against him was sufficient to warrant his
    committal.  But he argued that staying
    the domestic charges rendered the extradition proceedings an abuse of
    process.  He asked that those proceedings
    be stayed.  The extradition judge did not
    accept this argument and committed Mr.
Thamby
for
    extradition.

[5]

Before the Minister, Mr.
Thamby
renewed his abuse of process argument and also argued that surrendering him to
    the United States would unjustifiably violate his constitutional right to
    remain in Canada under s. 6(1) of the
Charter
.  The Minister rejected both arguments and
    ordered his surrender.

[6]

In this court, Mr.
Thamby
made essentially the same arguments that he had made before the extradition
    judge and the Minister.  I see no merit
    in the abuse of process argument.  However, in assessing Mr.
Thambys
claim of an
    unjustified violation of s. 6(1) of the
Charter
,
    the Minister failed to take account of the unusual facts of this case.  I would set aside the Ministers surrender
    order and remit the matter to him for reconsideration.

B.

Additional Facts

(1)

The domestic proceedings

[7]

The
    charges against Mr.
Thamby
in Ontario resulted from a
    coordinated investigation by the Federal Bureau of Investigation and Toronto
    Police Services.  The investigators
    alleged Mr.
Thamby
defrauded American residents of
    about $2 million.

[8]

The
    plea agreement was reached between May 29 and June 3, 2009.  Under the terms of the agreement, Mr.
Thamby
would have pleaded guilty to multiple counts of
    fraud and would have received a sentence of two years less a day to be served
    conditionally plus two years probation.  He would also have been subject to a restitution order of $200,000.  On July 24, 2009, Horkins J. of the Ontario
    Court of Justice approved the agreement and was ready to take Mr.
Thambys
plea.  The
    clerical error in the court office derailed the proceedings.

(2)

The United States extradition
    request

[9]

In
    mid-May 2009, the United States sent Canada a diplomatic note requesting Mr.
Thambys
extradition to face charges of conspiracy to
    commit fraud, mail fraud and wire fraud.  On June 23, 2009, the Minister of Justice issued an authority to proceed
    for the corresponding Canadian offence of fraud.

[10]

The
    conduct underlying the charges in the United States is identical to the conduct
    for which Mr.
Thamby
was charged in Ontario.  However, under United States sentencing
    guidelines, if convicted, Mr.
Thamby
faces a sentence
    of more than 15 years in prison.

(3)

The committal proceedings
    before the extradition judge

[11]

The
    committal hearing took place on May 13, 2010 before Trafford J.   As I have said, for the purpose of
    committal, Mr.
Thamby
did not contest the sufficiency
    of the evidence against him.

[12]

The
    extradition judge dismissed the stay application and committed Mr.
Thamby
for extradition.  He found no evidence the provincial Crown knew of the extradition
    proceedings before August 31, 2009.  He
    also found that the Ontario prosecutorial authorities had acted in good
    faith.  Therefore, their decision to stay
    the domestic charges was not improper.

(4)

The Ministers surrender order

[13]

On October 15, 2010, having considered Mr.
Thambys
submissions, the Minister of Justice ordered his
    surrender to the United States.  The
    Minister of Justice also found no abuse of process in staying the domestic
    charges.  He held that Mr.
Thamby
had no right to plead guilty in Canada, and merely
    because he faced a longer sentence in the United States was not a reason to
    refuse his surrender.

[14]

The Minister also held that surrendering Mr.
Thamby
to the United States would not unjustifiably violate
    his constitutional right under s. 6(1) of the
Charter
to remain in Canada.  The Minister did a
Cotroni
assessment and concluded that surrender for
    prosecution in the United States was the most effective and appropriate option.

C.

Analysis

(1)

There was no abuse of process

[15]

But for the error in the court office, Mr.
Thamby
would have received a conditional sentence of two
    years less a day.  He now faces the
    prospect of a sentence of more than 15 years in prison.  As severe as that may be, the mere
    possibility that a Canadian citizen may face a much higher sentence if
    extradited does not turn a stay of the domestic proceedings in favour of
    extradition into an abuse of process:  see
Whitley

v. USA
(1994) 20 O.R. (3d) 794 (C.A.),
affd
[1996] 1 S.C.R. 467.
[1]

[16]

Mr.
Thambys
abuse of process
    argument must rest on showing that, in exercising their discretion to stay the
    domestic charges, the Ontario prosecutors acted in bad faith or for improper
    motives.  Trafford J. made no finding of
    bad faith or improper motives.  And there
    is no evidence to support such a finding.  Thus, both the extradition judge and the Minister were correct to reject
    Mr.
Thambys
claim of abuse of process.

(2)

In determining that extradition
    did not unjustifiably violate Mr.
Thambys
s. 6(1)
    rights, the Minister of Justice failed to consider the unusual facts of this
    case

[17]

Under s. 6(1) of the
Charter
every Canadian citizen has the right to remain in
    Canada.  In
USA v.
Cotroni
, [1989] 1 S.C.R. 1469, the
    Supreme Court of Canada held that extradition is a
prima facie
infringement of the right guaranteed by s. 6(1), but is
    justified under s. 1 of the
Charter
.  Nonetheless, in a particular case, depending
    on the facts, the extradition of a Canadian citizen to face charges abroad may
    amount to an unjustified infringement of that
citizens s.
    6(1) rights
.  Whether it does is
    for the Minister to decide:  see
USA v. Kwok
, [2001] 1 S.C.R. 532.

[18]

Typically the Minister must decide whether prosecution
    in Canada is a realistic option: see
Controni
at 1498:

Of course, the authorities must give due weight to
    the constitutional right of a citizen to remain in Canada.  They must in good faith direct their minds to
    whether prosecution would be equally effective in Canada, given the existing
    domestic laws and international cooperative arrangements.  They have an obligation flowing from s. 6(1)
    to assure themselves that prosecution in Canada is not a realistic option.

[19]

The Ministers decision is discretionary.  In exercising that discretion, the Minister
    invariably considers some or all of the factors approved of by La Forest J.
    writing for the majority in
Cotroni
at 1498-1499:

·

where was the impact of the offence felt or
    likely to have been felt,

·

which jurisdiction has the greater interest in
    prosecuting the offence,

·

which police force played the major role in the
    development of the case,

·

which jurisdiction has laid charges,

·

which jurisdiction has the most comprehensive
    case,

·

which jurisdiction is ready to proceed to trial,

·

where is the evidence located,

·

whether the evidence is mobile,

·

the number of accused involved and whether they
    can be gathered together in one place for trial,

·

in what jurisdiction were most of the acts in
    furtherance of the crime committed,

·

the nationality and residence of the accused,

·

the
severity of the
    sentence the accused is likely to receive in each jurisdiction.

[20]

The weighing and balancing of these factors have come
    to be known as a
Cotroni
assessment.  Because a
Cotroni
assessment involves the exercise of discretion, the Ministers decision whether
    to surrender a Canadian citizen for extradition is entitled to deference from a
    reviewing court.  A court should
    interfere with the Ministers decision only if it is unreasonable:  see
USA
    v. Lake
, [2008] 1 S.C.R. 761, at para. 34.

[21]

However, before deferring to the Ministers decision,
    the court must be satisfied that the Minister carried out a proper
    analysis.  And a proper analysis requires
    consideration of the relevant facts.
LeBel
J. made this point writing for the court in
Lake
at para. 41:

The reviewing courts role is not to re-assess the relevant
    factors and substitute its own view.  Rather,
    the court must determine whether the Ministers decision falls within a range
    of reasonable outcomes.  To apply this
    standard in the extradition context, a court must ask whether the Minister
    considered the relevant facts and reached a defensible conclusion based on
    those facts.  I agree with Laskin J.A.
    that the Minister must, in reaching his decision, apply the correct legal
    test.  The Ministers conclusion will not
    be rational or defensible if he has failed to carry out the proper
    analysis.  If, however, the Minister has
    identified the proper test, the conclusion he has reached in applying that test
    should be upheld by a reviewing court unless it is unreasonable.

[22]

In the part of his reasons dealing with the abuse of
    process argument, the Minister does refer to Mr.
Thambys
submission on the plea agreement.  He
    even recognizes that this submission is closely tied to Mr.
Thambys
argument on s. 6(1) of the
Charter
.  Unfortunately, however, the Minister does not
    say anything more about this submission other than to observe that it can be
    considered by this court on the appeal from the committal order.

[23]

Thus, there is nothing in the Ministers reasons to
    show that he considered the plea agreement or the unusual facts of this case
    when he rejected Mr.
Thambys
s. 6(1) argument.  According to
Cotroni
, the Minister is required
    to consider whether prosecution in Canada is a realistic option.  Three of the
Cotroni
factors to be weighed and
    assessed are which jurisdiction has laid charges, which jurisdiction is
    ready to
proceed
to trial, and the severity of the
    sentence the accused is likely to receive in each jurisdiction.  Obviously, prosecution in Canada was a
    realistic option.  Charges were laid and
    successfully resolved.  Mr.
Thamby
would have been sentenced to two years less a day to
    be served in the community.  Now he faces
    a sentence of 15 years to be served in prison.  The harsher sentence that he now faces is a factor that militates
    against surrender:
U.S.A. v.
Ferras
; U.S.A. v.
Latty
, [2006] 2 S.C.R. 77, at para. 86.

[24]

Thus, the plea agreement and the unusual facts that
    precluded it from being implemented together with the disparity in sentences in
    the two jurisdictions are relevant to Mr.
Thambys
s.
    6(1) argument.  However, instead of
    adverting to these facts and especially to the plea agreement, which, but for
    the information having gone astray would have put an end to the extradition
    proceedings, the Minister simply said:

As Minister of Justice acting under section 40 of
    the Act, my role in the extradition process is essentially political in nature
    (
United States v. Kwok
,
supra
;
Lake v. Canada (Minister of Justice)
,
supra
).  As such, I will not
    interfere with the exercise of discretion not to prosecute Mr.
Thamby
, nor do I have the authority to direct the relevant
    investigative authorities to pursue an investigation or lay charges against
    him.

And:

Based on the fact that charges were originally laid
    in Canada, there can be no doubt that a Canadian prosecution was possible in
    this case.  I accept the finding of the
    extradition judge that the Canadian authorities properly exercised their
    discretion to stay Mr.
Thambys
domestic charges in
    favour of prosecution in the United States.  I can see nothing improper in these circumstances in this matter being
    prosecuted in the United States and I am particularly mindful that the crucial
    evidence of the elderly victims is located in the United States.  The Canadian evidence, though considerable,
    consists primarily of seized records and the evidence of the Canadian
    investigators and is more easily transportable to another jurisdiction for
    trial than is the evidence of the alleged victims.

Although Mr.
Thamby
was
    arrested in Canada and charged, there are no Canadian criminal proceedings
    pending against him.  By contrast, there
    are charges pending against Mr.
Thamby
in the United
    States District Court for the Southern District of Texas and his extradition
    has been sought from Canada.  In the
    absence of charges against Mr.
Thamby
in Canada, in
    my view, the principles enunciated in
Cotroni
,
supra
,
    applied to the facts of this case combined with Canadas treaty obligations
    make surrender for prosecution in the United States the most effective and
    appropriate option in this case.

[25]

Respectfully, these reasons include a considerable
    amount of boiler plate language but very little about Mr.
Thambys
actual circumstances and, as I have already mentioned, they say nothing about
    the plea agreement that was reached with the Ontario prosecutors, approved by
    an Ontario judge and set to be implemented.

[26]

Whether these circumstances ought to dictate a
    different result is not for me to say. Certainly, the Minister identified some
    relevant considerations warranting surrender, such as the harm having occurred
    to elderly victims in the United States. But Mr.
Thamby
is entitled to have the Minister weigh all of the relevant considerations
    favouring a domestic prosecution when exercising his discretion whether to make
    a surrender order.  From Mr.
Thambys
perspective, the extradition proceedings were
    unexpected, occurred at the very last moment and yet may have an enormous
    impact on his life.  On these unusual
    facts he is entitled to know why he cannot conclude his plea agreement in
    Canada.

D.

Conclusion

[27]

I
    would dismiss the appeal from the committal order.  I would allow the application for judicial
    review and remit the matter to the Minister for reconsideration.

RELEASED:  Apr. 29,
    2011
JL

John
    Laskin J.A.
I
    agree J.C. MacPherson J.A.
I
    agree Robert J. Sharpe J.A.

[1]
A more
    severe sentence in the foreign jurisdiction may be relevant to the Ministers
    surrender decision.  See para.
23 of these reasons.


CITATION:
Whelan v. Ontario
      Racing Commission, 2011 ONCA 299

DATE:
          20110418

DOCKET: C52816

COURT OF APPEAL FOR ONTARIO

Goudge
,
Juriansz
and MacFarland JJ.A.

BETWEEN

James Whelan

Applicant (Respondent)

and

Ontario Racing Commission and
Woodbine Entertainment
          Group

Respondents (Appellant)

P. David McCutcheon and
Reena

Goyal
, for the appellant

Arlen Sternberg, for the respondent

Brendan Van
Niejenhuis
, for the
          Ontario Racing Commission

Heard: February 16, 2011

On appeal from the judgment of the Divisional Court (Molloy, Swinton
          and
Cullity
JJ.) dated June 30, 2010, with reasons
          by Molloy J. and reported at (2010) 265 O.A.C. 85.

Goudge J.A.:

[1]

The appellant Woodbine Entertainment Group (WEG) is the
    owner and operator of the Woodbine and Mohawk racetracks. In April 2009, WEG
    refused to permit the respondent, Mr. Whelan, to race his horses at its tracks
    unless he signed its Access Agreement, which provided the terms of entry onto
    its premises. He refused to do so and sought a declaration from the Ontario
    Racing Commission (ORC) that he could not be required to sign WEGs Access
    Agreement in order to be allowed to enter his horses to race on its tracks.

[2]

The ORC dismissed his application in September 2009. Mr.
    Whelan then sought judicial review of the ORC decision. The majority of the Divisional
    Court found the decision to be unreasonable and ordered that WEG be prohibited
    from excluding Mr. Whelans horses solely on the basis that he had not signed
    the Access Agreement.

[3]

WEG appeals the Divisional Courts decision. For the
    reasons that follow, I conclude that the majority of the Divisional Court erred
    in finding that the ORC decision was unreasonable. I would therefore allow the
    appeal.

THE BACKGROUND

[4]

WEG
    is a private property owner running a business on its two racetracks. As a
    property owner, it has considerable authority to act autonomously, for example,
    to exclude individuals from its premises. However, in two respects it is a
    highly regulated business.

[5]

First,
    horse racing at WEGs racetracks is regulated by the ORC, as it is in all
    racetracks in Ontario. The
Racing
    Commission Act 2000
, S.O. 2000, c. 20 gives the ORC a broad mandate to
    regulate horse racing in Ontario. This mandate gives the ORC the power, in the
    public interest, to take action which may incidentally affect the property
    rights of racetrack owners such as WEG: see
Ontario
    Harness Horse Association v. Ontario Racing Commission
(2002), 62 O.R. (3d)
    44 ( C.A.), known as the
Sudbury Downs
case. For example, when a racetrack owner excludes a licensed horse owner from
    its premises and therefore from racing there, this action comes within the
    regulatory jurisdiction of the ORC, even though it affects the owners property
    rights. As this court said in
Sudbury
    Downs
at
para
. 47, It is much more a horse
    racing issue than a property issue.

[6]

A
    second area in which WEG is subject to regulation is wagering. The viability of
    its business depends upon revenue from wagering. This requires that its
    racetracks be licensed by a federal agency, the
Canadian
Pari
-
Mutuel
Agency (CPMA). To obtain a license, WEG is required
    by the CPMA to have an agreement with horsemen setting out how wagering
    revenues are shared.

[7]

Until
    December 2008, WEG had a contract with the Ontario Harness Horse Association
    about how wagering revenues were to be shared. This contract satisfied the CPMA
    requirement, but it expired at the end of 2008. Starting in January 2009, to
    satisfy the CPMA, WEG entered into individual Access Agreements with each horseperson
    using its racetracks. In addition to setting out the terms for the right to
    enter WEGs premises, the Access Agreements provided a formula for sharing
    wagering revenue. Based on that aspect of the Access Agreements, the CPMA
    issued WEG a wagering license for 2009.

[8]

Mr.
    Whelan took issue with a number of aspects of the Access Agreement. He objected
    to the provision that required him to abide by WEGs rules particularly the
    provision that reserved to WEG the right to revoke access to its premises at
    any time in its sole and absolute discretion and without notice, reason or
    compensation. He therefore refused to sign the Access Agreement. As a
    consequence, WEG refused him entry, which meant that his horses were not eligible
    to race at WEG racetracks. The sole basis for this refusal was that Mr. Whelan
    had not signed an Access Agreement.

[9]

Ultimately,
    after being told by the onsite ORC judge that he had to sign to be allowed to
    race, Mr. Whelan appealed to a three-person panel of the ORC. He sought a
    declaration that he is not required to execute WEGs Access Agreement in order
    to enter his horses to race on its racetracks.

[10]

The
    ORC dismissed Mr. Whelans request for a declaration. It held that nothing in
    WEGs rules or its Access Agreement usurped the ORCs statutory function as
    regulator, including giving Mr. Whelan the right to be heard on his appeal from
    the WEG decision. It repeated a number of times that nothing in WEGs rules or
    the Access Agreement diminished Mr. Whelans access to due process before the
    ORC. In the circumstances, the ORC concluded that the public interest
    overwhelmingly supported the requirement that Mr. Whelan sign the Access
    Agreement to be allowed to race his horses at WEGs racetracks.

[11]

Mr.
    Whelan sought judicial review of this decision. The Divisional Court
    unanimously rejected his argument that only the ORCs rules  as distinct from
    WEGs rules  can regulate racing, and since the ORCs rules do not oblige him
    to sign the Access Agreement in order to race, WEG could not require him to do
    so. It also rejected his argument that the ORC exceeded its jurisdiction by
    requiring Mr. Whelan to agree to certain wagering revenue sharing as a
    condition of his eligibility to race, given that the CPMA has jurisdiction over
    issues of revenue sharing.

[12]

However,
    Mr. Whelan succeeded in persuading the majority of the Divisional Court that
    the ORC decision was unreasonable and should be set aside. The majority held
    that the ORC decision permitted WEG to arbitrarily exclude Mr. Whelan from
    racing his horses at its tracks and to do so without giving him a hearing. They
    concluded that, in the circumstances, this decision fell outside the range of
    possible acceptable outcomes and was therefore unreasonable. At
paras
. 75-81 of their decision, the majority framed their
    conclusion as follows:

WEG
    cannot set itself up as a second tier regulator entitled to arbitrarily exclude
    individuals from racing at its tracks, in its own discretion, without any fault
    and without an opportunity to be heard.

I
    also cannot understand why the ORC would think it reasonable that Mr. Whelan be
    barred from racing at WEG for refusing to agree to provisions in an agreement
    that ORC itself says is contrary to the public interest and unenforceable.

In
    my view, the ORCs conclusion that WEG is entitled to do so in the public
    interest cannot be said to be reasonable or to fall within that range of
    possible outcomes that can reasonably be justified.

[T]he
    ORC acted unreasonably by permitting WEG to insist on a signed Access Agreement
    containing provisions that purport to give WEG absolute unfettered power to
    exclude licensed ORC horse racing participants who have committed no fault.

[13]

In
    her dissent, Swinton J. underlined that the ORC recognized that the Access
    Agreement did not interfere with Mr. Whelans right to procedural fairness. She
    noted that the ORC decision carefully reviewed the public interest considerations
    that
favoured
not interfering with WEGs requirement
    to sign the Access Agreement, and found that they outweighed the impact of that
    requirement on Mr. Whelan. She concluded that the ORC decision neither
    subjected Mr. Whelan to arbitrary exclusion from racing nor denied him due
    process, but was a reasonable decision deserving of deference. She would have
    dismissed the application for judicial review.

[14]

In
    this court, WEG argued that the ORC decision is entirely reasonable and that
    the majority of the Divisional Court erred in finding otherwise. Mr. Whelan
    takes the contrary view, for the reasons of the majority, but also seeks to
    support the order appealed from on the basis of the two arguments rejected by
    all three judges below. The ORC takes no position on the merits.

ANALYSIS

[15]

All
    parties agree that the issue on which the Divisional Court divided is not a
    question of the ORCs jurisdiction. Rather, it requires a review of the ORC
    decision against the standard of reasonableness. It is also not contested that
    reasonableness is concerned with justification, transparency and
    intelligibility in the process of decision making, and with whether the result
    falls within a range of possible, acceptable and defensible outcomes: see
Dunsmuir v. New Brunswick
, [2008] 1
    S.C.R. 190 at
para
. 47. I have concluded that the
    majority of the Divisional Court erred in this analysis and that the ORC
    decision satisfies the standard of reasonableness in both respects.

[16]

In
    my view, the majority erred in two ways. First, the ORC decision did not
    require Mr. Whelan to sign an Access Agreement that denied him an opportunity
    to be heard. Nor does the Agreement give WEG absolute unfettered power to
    arbitrarily exclude him. The Access Agreement does neither, as the ORC
    correctly found. The majority of the Divisional Court erred in finding
    otherwise.

[17]

Mr.
    Whelan does not claim a right to be heard by WEG before it makes a decision to
    exclude him. Nor does he have such a right. In excluding an individual, WEG is
    exercising its property rights, not performing a statutory duty that affords
    the individual the right to a hearing before it does so. Mr. Whelan and WEG
    both agree that his right to be heard arises on an appeal to the ORC from a
    decision by WEG to exclude him. The ORC correctly found that nothing in the
    Access Agreement purports to take away the right to due process before the ORC.

[18]

Nor
    does that Access Agreement give WEG absolute unfettered power to arbitrarily
    exclude Mr. Whelan. Any WEG decision to exclude him can be appealed to the ORC.
    If it finds the decision to be arbitrary, it can set the decision aside. The
    Access Agreement does not and cannot remove this right of appeal. Any attempt to
    do so can be overridden by the ORC.

[19]

The
    second way in which the majority erred is by focusing exclusively on the burden
    imposed on Mr. Whelan in having to sign the Access Agreement. Even if the
    majority was correct in describing this burden, they failed to consider that
    the ORC balanced it against the various public interest considerations
    supporting WEGs requirement that Mr. Whelan sign the Agreement. The
    reasonableness of the ORCs balancing is the true measure of whether its
    decision falls within a range of possible acceptable outcomes. The majority did
    not make this assessment.

[20]

I
    agree with Swinton J. that the ORCs decision satisfies both aspects of the
    concept of reasonableness described in
Dunsmuir
.
    The first aspect, the process by which the ORC reached its decision, is not put
    forward by Mr. Whelan as deficient. Nor could it be. The reasons of the ORC clearly
    show the path of reasoning it followed to reach its decision and this path has a
    defensible logic sufficient to satisfy the first aspect of the reasonableness
    requirement. As Swinton J. put it:

The
    reasons of the ORC show a careful consideration of the competing interests at
    play in this case and explain why the ORC chose not to intervene to prevent WEG
    from requiring individuals such as the applicant to sign the Access Agreement
    in order to race their horses at its facilities.

[21]

The
    decision held that the Access Agreement did not bar access to a hearing before
    the ORC and that it therefore did not impair Mr. Whelans due process rights.
    In the same way, the Access Agreement did not expose Mr. Whelan to arbitrary
    exclusion by WEG from its racetracks because any such exclusion could be set
    aside on appeal to the ORC. The ORC then balanced any remaining burden on Mr.
    Whelan from being required to sign against the significant public interest
    considerations
favouring
the imposition of that
    requirement by WEG. The ORC listed them as follows:

·

Changing
    widely accepted industry practice to accommodate one individual.

·

To
    undermine the efficacy of a system adopted by horse people on a 2500 to 1
    basis, a system with long-term high quality proven results.

·

Promoting
    compliance with rules and procedures proven to be workable and to industry
    advantage.

·

Temporarily
    avoiding
imperilling
WEGs wagering permits thereby promoting continuity of racing and the vast
    economy which it supports.

·

Compliance
    with CPMA contract requirements.

·

Compounding
    insurance litigation. The liability waiver affords protection against subrogated
    claims between insurers. Avoiding multiple lawsuits is in the public interest.

·

Continuing
    to provide racing entertainment for the segment of the public so inclined.

·

Avoiding
    micro-management of business affairs by the industry Regulator.

·

Avoiding
    a creeping and improper extension of the ORC mandate to regulate and govern.

·

Avoiding
    an unauthorized duplicate due process structure.

[22]

The
    ORC concluded that the public interest considerations significantly outweighed any
    burden on Mr. Whelan and that the balance of probability scale clearly and
    abundantly
favours
WEGs position. I agree with
    Swinton J. that this conclusion is within the range of possible, acceptable and
    defensible outcomes in the circumstances of this case. It was reasonable to
    decide that any limited burden on Mr. Whelan was significantly outweighed by
    the public interest considerations
favouring
WEGs
    requirement. That decision reflects the ORCs statutory obligation to govern
    horse racing in the public interest.

[23]

As
    he did before the Divisional Court, Mr. Whelan advances two additional reasons
    to reverse the ORC decision and conclude that WEG cannot impose a rule barring
    him from racing if he does not sign the Access Agreement. He argues that only
    the ORC can set rules that bar him from racing. The Divisional Court
    unanimously rejected this argument. It found that there is nothing in the
    existing ORC rules or the governing legislation preventing a racetrack owner
    like WEG from imposing rules, as it did in this case, that regulate entry to
    its premises and yet relate to racing. Racing is not only affected by the ORCs
    rules. If there is a conflict with the ORCs rules, the latter prevail. I would
    come to the same conclusion for the same reasons and would reject this
    argument.

[24]

Mr.
    Whelans second argument is that by requiring him to sign the Access Agreement,
    the ORC is requiring him to agree to the particular wagering revenue sharing
    formula contained in it and that only the CPMA has the jurisdiction to do that.
    The Divisional Court unanimously rejected this argument as well, holding that
    the ORC decision did not require Mr. Whelan to accept WEGs revenue sharing
    formula. The ORC simply declined to intervene when WEG required him to accept
    it. The ORC did not impose the revenue sharing formula; rather WEG did,
    pursuant to the regulatory authority of the CPMA. Here too, I would reject Mr. Whelans
    submissions for the same reasons as the Divisional Court.

[25]

In
    the result, I would allow the appeal, restore the ORCs decision and dismiss
    Mr. Whelans application for judicial review.

[26]

WEG
    is entitled to its costs of the application and the appeal, including the leave
    motion, to be paid by Mr. Whelan on a partial indemnity basis. I would fix them
    at $10,000 and $20,000 respectively, inclusive of disbursements and applicable
    taxes.

RELEASED:  APR 18 2011 (S.T.G.)

S. T. Goudge J.A.

I
    agree. R. G. Juriansz J.A.

I
    agree. J. MacFarland J.A.