A recent decision of the Québec Superior Court in a case
related to a price-fixing conspiracy shows that courts will not
hesitate to severely punish individuals for violations of the
Competition Act (Act), sending a clear message to deter
those who might be tempted to distort the rules of free
Following an investigation by the Competition Bureau, criminal
charges were laid in June 2008 and July 2010 against 38
individuals and 14 businesses for conspiring to fix the price of
gas at the pump in certain municipalities in the province of
In November 2011, Mr. Donald Darby, owner of two service
stations, pleaded guilty of conspiring to fix the price of gas at
the pump in the city of Sherbrooke, Québec. Having recorded
the guilty plea, the Court had to determine the appropriate
sentence to be imposed on the offender. The prosecution had
recommended a fine in the amount of $7,500 to $10,000, while the
accused sought an unconditional discharge, which means he would be
deemed not to have been convicted of the offence. He also offered
to donate a minimum of $10,000 to a charity.
With respect to sentencing, the Court noted that two conditions
must be met in order to grant an absolute discharge. The Court must
be of the view, on the one hand, that a discharge is in the best
interests of the accused and, on the other hand, that it is not
contrary to the public interest.
In its analysis, the Court reiterated that the punishment must
be commensurate with the crime and that public interest
considerations include factors such as the objective gravity of the
offence, its impact on the community, the need for general
deterrence, as well as the importance of maintaining public
confidence in the administration of justice. In other words, the
likelihood of obtaining a discharge decreases as the seriousness of
the crime increases, given that for serious crimes, the objectives
of denunciation and deterrence will militate in favour of greater
Turning next to circumstances specific to the accused, the Court
noted that he was not a ring-leader of the conspiracy and did not
have a criminal record. The Court also recognized that the accused
did not present a risk of re-offending, and therefore a conviction
was not necessary to deter him from committing other offences or to
ensure his rehabilitation. Finally, the Court noted that the guilty
plea saved the judicial system additional costs.
However, emphasizing the need to punish severely those who
contravene the Act, the Court refused to grant an absolute
discharge and ordered Mr. Darby to pay personally
a fine in the amount of $10,000, the maximum penalty recommended by
the prosecution. The Court added that the judiciary must ensure
that the fine does not amount to "a mere slap on the wrist or
a licence" and that the fine imposed must "hurt
The Court made it clear that the accused's minor involvement
in the conspiracy was offset by aggravating factors, such as the
objective gravity of the offence, the personal financial gains
derived from the operation of his two service stations, as well as
the degree of sophistication and scope of the conspiracy. The Court
rejected the accused's argument that the imposition of a
sentence would have an adverse effect on his professional
McCarthy Tétrault Notes
This decision of the Québec Superior Court demonstrates
that courts will not hesitate to punish severely individuals who
engage in economic crimes. The seriousness of this type of offence
was also reflected in the 2009 amendments to the Act, which
increased the maximum imprisonment term for conspiracy and
bid-rigging offences from five to 14 years, making it impossible
for an individual who has been found guilty to obtain a discharge.
The federal government's Bill C-10, which proposes to
abolish conditional sentences for individuals found guilty of a
serious crime, including conspiracy and bid-rigging offences under
the Act, is along the same line. Thus, if Bill C-10 is
adopted, any individual sentenced to imprisonment under the Act
will necessarily serve time in jail.
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