DATE: 20030512

DOCKETS: C31588 and C31589

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– WORLD MEDIA BROKERS INC. and GRAND PRINT INC. (Appellants)

BEFORE: LABROSSE, WEILER and CRONK JJ.A.

COUNSEL: Brian H. Greenspan, for the appellant

Scott C. Hutchison, for the respondent

HEARD: May 6, 2003

On appeal from the convictions imposed by Justice David A. Fairgrieve of the Ontario Court of Justice dated October 13, 1998, reported at (1998), 1998 27760 (ON CJ), 132 C.C.C. (3d) 180, and from the sentence imposed by Justice Fairgrieve dated February 1, 1999.

E N D O R S E M E N T

[1] The appellants appeal their convictions on eight charges arising from their activities in relation to a scheme to sell shares of tickets in a Spanish lottery, contrary to s. 206(1) (Counts 1 to 5) and s. 202(1) (Counts 6 to 8) of the Criminal Code. Applying the Kienapple principle, the trial judge entered conditional stays on all but Count 4 of the indictment. He imposed a fine of $100,000.00.

[2] The trial proceeded on the basis of an Agreed Statement of Facts, supplemented by documentary exhibits and brief viva voce evidence. There is no legally significant difference in the roles of the two corporate appellants in the conduct giving rise to the charges. They were charged jointly. The appellants were involved in the business of selling repackaged fractional shares in high-stakes, state-run foreign lotteries to American consumers.

Convictions

[3] With respect to the convictions, the appellants submit that the trial judge was in error in his disposition of the issues raised in this case. They are: 1) the “Additional Element of Chance” issue; 2) the “Agents for Buyer” issue; 3) the “Betting or Wagering” issue; and 4) the effect of s. 207(1)(h) of the Code. In detailed and thorough reasons, the trial judge rejected the issues raised on behalf of the defence.

1. The “Additional Element of Chance” Issue

[4] The appellants argued that it was necessary that an accused introduce a new element of chance in order to be found guilty under s. 206 of the Code. In support of that proposition, the appellants relied essentially on the decision of this court in R. v. Austin, [1979] O.J. No. 823 (C.A.) and R. v. Herger (1991), 1991 7065 (ON CA), 4 O.R. (3d) 359 (C.A.). In rejecting this proposition, the trial judge analysed those decisions and correctly distinguished them from the present case on the basis of the differences in the charges and in the particulars of the charges in those cases. He concluded that the present scheme came within the language of s. 206 of the Code.

2. The “Agents for Buyer” Issue

[5] With respect to this issue, the appellants argued that their activities should be characterized not as repacking and selling but as acting as agents for buyers. The trial judge reviewed the relevant facts and properly rejected this submission as being inconsistent with the facts of the case.

3. The “Betting or Wagering” Issue

[6] This issue related to the last three counts in the indictment. The trial judge concluded that the agreement with purchasers to “guarantee” a minimum win on some purchases was in fact a bet or wager between the appellants and the purchasers in which both stood to win or lose and that it was intended to be used “in connection with betting on a game” within the meaning of s. 202(1) of the Code. In arriving at his conclusion, he relied on the decision of this court in R. v. Herger.

4. The Effect of s. 207(1)(h) of the Code

[7] This last issue was whether the defence could resort to the exemption in s. 207(1)(h) of the Code.

[8] The trial judge found that the activities of the appellants went well beyond the narrow form of exemption contemplated by the section. More importantly, he accepted the uncontradicted evidence of an expert witness on American law to the effect that the activities of the appellants clearly violated the law in the United States. Accordingly, the trial judge concluded that the Crown had established that the exemption in s. 207(1)(h) was not available to the appellants.

[9] We see no error in the conclusions reached by the trial judge on all four issues raised in this case. We would dismiss the appeal as to conviction.

Sentence

[10] The trial judge concluded that the fine imposed reflected only a small fraction of the total revenue generated by the appellants’ scheme during the six years covered in the indictment. We see no error in principle and no basis to interfere. We would dismiss the appeal as to sentence.

Disposition

[11] For the reasons given, the appeals as to conviction and as to sentence are both dismissed.

Signed: “J.-M. Labrosse J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”