R. v. Yadegari (M.), 2011 ONCA 287

• Judge: Moldaver, Cronk and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 03, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 287;(2011), 276 O.A.C. 322 (CA)

R. v. Yadegari (M.) (2011), 276 O.A.C. 322 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.021

Her Majesty the Queen (respondent) v. Mahmoud Yadegari (appellant)

(C52601; 2011 ONCA 287)

Indexed As: R. v. Yadegari (M.)

Ontario Court of Appeal

Moldaver, Cronk and Lang, JJ.A.

April 12, 2011.

Summary:

The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran. The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran. The restrictions were set out in Circular 254 from the International Atomic Energy Agency. Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products. Section 3 of the Iran Regulations under the United Nations Act (UN Act) made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran. The accused was convicted on nine of the 10 charges, including the offence under the UN Act (UN offence). The accused was sentenced to 20 months' imprisonment, including eight months' imprisonment on the UN offence after receiving 31 months' credit for pre-sentence detention. The accused appealed from his convictions on four of the charges and appealed from his sentence.

The Ontario Court of Appeal allowed the accused's sentence appeal only to the extent of substituting a sentence of five months' imprisonment on the UN offence (after 31 months' credit). The conviction appeal was dismissed.

Criminal Law - Topic 5876

Sentence - Forgery (incl. possession of forgery equipment) - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges - The accused was sentenced to 20 months' imprisonment, including the following sentences for offences contrary to the forgery provisions of the Criminal Code; count 7 (making a false waybill), six months' imprisonment, consecutive to the sentences of eight months and six months on counts one and five; count 8 (using a forged document), three months' imprisonment, concurrent; and count 10 (using a forged document), six months' imprisonment, concurrent - The Ontario Court of Appeal upheld the sentence as it related to the forgery convictions - See paragraphs 87 to 98.

Customs - Topic 6845

Exports - Prohibited exports - Nuclear related goods - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges - At issue on the appeal was whether the trial judge had erred by concluding that the transducers satisfied, inter alia, the nickel content requirement of the specifications set out in s. 3.A.7(a) of Circular 254 - The Ontario Court of Appeal dismissed the appeal - The protective purposes of the specifications and of s. 3.A.7(a), in particular, weighed strongly against an interpretation, as suggested by the accused, that unduly narrowed that section's reach - It was beyond dispute that the pressure sensing devices in the seized transducers contained sufficient nickel alloy components so as to render them capable of use in a uranium enrichment process - This was precisely the type of transducer that the export restrictions were intended to capture - The plain and ordinary meaning of the language in s. 3.A.7(a), the purpose of the specifications as a whole and the object of s. 3.A.7(a) in particular, compelled the conclusion that the transducers here satisfied the nickel content of the specifications - The seized transducers were of a type that were subject to export restrictions under the relevant statutory framework - See paragraphs 35 to 50.

Customs - Topic 6845

Exports - Prohibited exports - Nuclear related goods - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges - At issue on the appeal was whether the trial judge had erred by concluding that the transducers satisfied, inter alia, the accuracy requirements of the specifications set out in s. 3.A.7(b) of Circular 254 - A technical note in the specifications indicated that "accuracy" for the purpose of the specifications "includes non-linearity, hysteresis and repeatability at ambient temperature" - The trial judge held that the term "includes" meant "one of the listed items" - The accused asserted that the use of the conjunction "and" between the factors listed suggested that accuracy testing had to include measurements based on all three factors - The Ontario Court of Appeal dismissed the appeal - The court disagreed with the accused's interpretation - "And" could be interpreted as joint or as joint and several, depending on the context - The use of the word "includes" in the technical note clearly suggested 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, suggested that accuracy measurements might, but need not, be based on the listed factors - In any event, here, non-linearity, one of the listed factors, was encompassed in the accuracy testing that was undertaken - The seized transducers were of a type that were subject to export restrictions under the relevant statutory framework - See paragraphs 36 to 64.

Customs - Topic 6845

Exports - Prohibited exports - Nuclear related goods - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act (UN Act) made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges, including the offence under the UN Act (UN offence) - At issue on his appeal from the convictions was the reasonableness of the conviction on the UN offence - The Ontario Court of Appeal dismissed the appeal - The trial judge correctly held that the transducers here were subject to export restrictions - Further, it was undisputed that the accused had not obtained the required certificate of exemption before attempting to export the transducers - The only remaining issue was whether he "knowingly sought to supply the transducers to a 'person in Iran'" - Viewed cumulatively, there was ample evidence to ground the trial judge's conclusion that the accused had the requisite knowledge - The conviction was reasonable - See paragraphs 65 to 78.

Customs - Topic 8204.1

Offences and penalties - Penalties - Illegal exportation - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act (UN Act) made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges, including the offence under the UN Act (UN offence) - The accused was sentenced to 20 months' imprisonment, including eight months' imprisonment on the UN offence after receiving 31 months' credit for pre-sentence detention - The Ontario Court of Appeal allowed the accused's sentence appeal only to the extent of substituting a sentence of five months' imprisonment on the UN offence (after 31 months' credit) - While the evidence supported the trial judge's inference that the transducers had some illegal purpose, there was no basis for her inference that the "only" illegal purpose for the transducers was the enrichment of uranium and that, more importantly, the accused was aware of this presumed tie to uranium enrichment - Therefore, in embarking as she had on her sentencing analysis, the trial judge had erred - That error warranted a slight reduction in the sentence on the UN offence - The accused's sentencing should have proceeded on the basis that, motivated by greed, he had failed to comply with export restrictions and regulations applicable to the transducers and was reckless as to how the transducers were to be used - These factors alone compelled a significant sentence of imprisonment - The accused's conduct was serious - General deterrence was of paramount importance - See paragraphs 79 to 98.

Customs - Topic 8209.3

Offences and penalties - Penalties - Unlicensed export - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act (UN Act) made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges - The accused was sentenced to 20 months' imprisonment on count two, attempting to export or transfer restricted goods without first obtaining an export permit, contrary to the Export and Import Permits Act - The Ontario Court of Appeal upheld the sentence - See paragraphs 87 to 98.

Customs - Topic 8209.3

Offences and penalties - Penalties - Unlicensed export - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges - The accused was sentenced to 20 months' imprisonment, including six months' imprisonment, concurrent, for attempting to export controlled nuclear equipment without first obtaining an export licence, contrary to the Nuclear Safety and Control Act - The Ontario Court of Appeal upheld the sentence - See paragraphs 87 to 98.

Customs - Topic 8209.4

Offences and penalties - Penalties - Failing to report restricted goods - The accused was charged on a 10 count information with offences related to the attempted exportation of two devices known as "pressure transducers" to a person in Iran - The Crown asserted that the transducers were subject to restrictions designed to prevent the exportation of nuclear related items to Iran - The restrictions were set out in Circular 254 from the International Atomic Energy Agency - Transducers that met certain technical parameters enumerated in Circular 254 were among the proscribed products - Section 3 of the Iran Regulations under the United Nations Act (UN Act) made it an offence in Canada to knowingly sell, supply or transfer, directly or indirectly, certain products, including the transducers described in Circular 254, to any person in Iran - The accused was convicted on nine of the 10 charges, including the offence under the UN Act (UN offence) - The accused was sentenced to 20 months' imprisonment, including one month's imprisonment, concurrent, on each of two charges under the Customs Act (failing to report restricted goods and failing to report the value of goods) and six months' imprisonment, consecutive to the eight month sentence for the UN offence, under the Customs Act (making a false and deceptive statement) - The Ontario Court of Appeal upheld the sentence as it related to the Customs Act offences - See paragraphs 87 to 98.

Customs - Topic 8209.5

Offences and penalties - Penalties - Failing to report value of goods - [See Customs - Topic 8209.4 ].

Customs - Topic 8209.6

Offences and penalties - Penalties - Making false and deceptive statements - [See Customs - Topic 8209.4 ].

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See first Customs - Topic 6845 ].

Statutes - Topic 2413

Interpretation - Interpretation of words and phrases - General principles - Conjunctive words or phrases - [See second Customs - Topic 6845 ].

Statutes - Topic 2456

Interpretation - Interpretation of words and phrases - Interpretation and definition clauses - Use of words "include" and "including" - [See second Customs - Topic 6845 ].

Words and Phrases

"And" and "Includes" - The Ontario Court of Appeal discussed the interpretation of the words "and" and "includes" as found in s. 3.A.7(b) of the International Atomic Energy Agency, 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 - See paragraphs 36 to 64.

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 44].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 44].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 65].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 228 C.C.C.(3d) 432 (C.A.), refd to. [para. 91].

Statutes Noticed:

International Atomic Energy Agency, 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, sect. 3.A.7 [para. 12].

Authors and Works Noticed:

Sullivan, Ruth, Statutory Interpretation (1997), p. 88 [para. 62].

Counsel:

Frank Addario and William Thompson, for the appellant;

Croft Michaelson and Jennifer Conroy, for the respondent.

These appeals were heard on February 3, 2011, by Moldaver, Cronk and Lang, JJ.A., of the Ontario Court of Appeal. On April 12, 2011, Cronk, J.A., delivered the following judgment for the court.