Canada: The Usual Suspects? The Scope of Corporate Criminal Liability Under Canadian Antitrust Law

On August 9, 2013, Les Pétroles Global Inc ("Global"), a Canadian retail gasoline operator, was convicted by the Quebec Superior Court of conspiring to fix gasoline prices in two markets in the province of Quebec based on the criminal conduct of its managing director, who also pleaded guilty to the same offence. The decision represents the first contested application of provisions in the Canadian Criminal Code, enacted almost a decade ago, defining the criminal liability of corporations and other organizations for conduct engaged in by their employees (and others). The authors suggest that while the decision is likely to embolden the Competition Bureau and Department of Justice in their enforcement of Canadian criminal antitrust law, it fails to address important questions concerning the scope and limits of corporate criminal antitrust liability in Canada.


Historically, corporate criminal liability in Canada was based on the common law identification doctrine. Under that doctrine, a corporation faces criminal liability only for the criminal acts of a "directing mind" – being any person exercising "the governing executive authority of the corporation" – where those acts were committed within the field of operation assigned to him or her and had the purpose or effect, whether in whole or in part, of benefitting the company.1 The concept of "governing executive authority" was interpreted in the relevant jurisprudence as requiring "an express or implied delegation of executive authority to design and supervise the implementation of corporate policy [in a relevant sphere of corporate activity] rather than simply to carry out such policy".2

In 2004, section 22.2 of the Criminal Code came into force.3 For fault-based offences (including criminal conspiracy under section 45 of the Canadian Competition Act), that provision now prescribes three circumstances in which corporations and other "organizations" may be held criminally responsible as a party to such an offence. For a corporation to attract criminal liability, section 22.2 requires that a "senior officer" must have had the intent at least in part to benefit the corporation, and that: (i) the senior officer, acting within the scope of his or her authority, was himself a party to the offence (section 22.2(1)(a)); (ii) the senior officer had the required mens rea for the offence, was acting within the scope of his authority, and directed the work of other "representatives" (including employees, agents or contractors) of the corporation to perform the actus reus of the offence (section 22.2(1)(b)); or (iii) knowing that a representative of the corporation is or is about to be a party to the offence, the senior officer fails to take "all reasonable measures to stop them from being a party to the offence" (section 22.2(1)(c)). Section 2 of the Criminal Code defines "senior officer" broadly and is not limited to individuals appointed by the board of directors. Specifically, a senior officer is defined as a director, chief executive officer, chief financial officer, partner, employee, member, agent or contractor "who plays an important role in the establishment of a corporation's policies or is responsible for managing an important aspect of the corporation's activities".

R v Les Pétroles Global Inc.4

A.        The Conspiracy

Global operates retail gasoline stations in Eastern Canada (i.e., Ontario, Quebec and the Maritime provinces). In 2008, Global and three of its employees – the company's managing director for Quebec and the Maritime provinces, Christian Payette, and two of its territorial managers, Pierre Bourassa and Daniel Leblond – were charged under the criminal conspiracy provision in section 45(1)(c) of the Competition Act with conspiring to prevent or lessen unduly competition in the sale of retail gasoline in two Quebec markets. All three employees pled guilty as charged. At Global's trial, the only issue before the Court was whether the corporation should be held criminally liable pursuant to section 22.2 of the Criminal Code for the conduct of its employees, Payette, Bourassa and Leblond.

B.        The Decision

In its reasons for decision, the Court addressed (and ultimately rejected) Global's contention that rather than expanding corporate criminal liability, section 22.2 was intended merely to clarify the application of the common law identification doctrine, and was not otherwise intended to alter, much less enlarge, the traditional scope of corporate criminal liability under Canadian law. To the contrary, in the Court's view, in tying corporate liability to the conduct of "senior officers", including employees "responsible for managing an important aspect of the corporation's activities", the enactment of section 22.2 made a significant change to the common law.  Specifically, the Court concluded that the provision discards the judge-made dichotomy between those who "design and supervise the implementation of corporate policy" and those who "simply carry out such policy",5 thereby extending criminal corporate liability beyond the boardroom and down to those on the "plant floor", as the Court put it, who operationalize and implement corporate policies set by others.6

On the question of whether the essential elements of section 22.2 had been proven against Global, the Court considered only the conduct of the company's managing director, Payette, and whether he was a "senior officer". The issue of whether the two lower-level employees convicted of conspiracy – the territorial managers Bourassa and Leblond – were also "senior officers" for the purpose of triggering liability for Global under section 22.2 was not addressed. 

Based on a careful review of the evidence regarding Payette's roles and responsibilities at Global, the Court concluded that he was "responsible for managing an important aspect of the corporation's activities" and was, indeed, a "senior officer".7 Among other things, the Court found that as Global's onlymanaging director, Payette was the third most senior employee, after the company's President and Vice-President, and that he was solely responsible for overseeing the day-to-day operations of, and operationalizing and implementing corporate policy at, two thirds of Global's retail gas outlets, including supervising Bourassa, Leblond and the four other territorial managers who set gas prices for Global's stations in Quebec and the Maritime provinces.8 Payette also participated in the design and supervision of the implementation of Global's corporate policy with respect to the formulation and approval of the business plans for each of the company's gas stations in Quebec and the Maritimes.   

The Court also concluded that Payette had participated in the conspiracy, that he was aware that his territorial managers were engaging in price fixing but took no steps to stop them and that the conspiracy benefitted Global, thereby triggering liability on the company's part under section 45(1)(c) of the Competition Act by virtue of sections 22.2(1)(a) and (c) of the Criminal Code.9

Implications and Unanswered Questions

The importance and implications of Les Pétroles Global in defining (or expanding) the scope of corporate criminal antitrust liability in Canada should not be overstated. Pointing to the parallels between the facts of the case before it and those of a nearly quarter century old decision in which Shell Canada was convicted of price maintenance in respect of the retail gas prices by reason of its employees' conduct,10 the Court itself suggests that Payette could properly have been found to be a "directing mind" of Global under the common law identification doctrine and that it is unlikely that the company would have fared any better prior to the enactment of section 22.2.11 The scope and limits of section 22.2 were therefore not tested and important questions remain unanswered. For example, the decision does not address (or shed light on) the interesting and more difficult questions of whether the territorial managers, Bourassa and Leblond, were "senior officers", such that Global could properly have been held criminally liable for their actions,12 or, more generally, whether, and, if so, in what circumstances, corporate criminal antitrust liability in Canada extends, by virtue of the enactment of section 22.2, to the actions of middle managers and other lower-level employees.

Further, given that Payette was clearly a party to the offence, acting within the scope of his authority (thereby triggering Global's liability pursuant to section 22.2(1)(a)), took no steps to stop Bourassa and Leblond from price fixing and, in fact, both permitted and facilitated their criminal conduct, several questions concerning the scope of liability under section 22.2(1)(c) will have to be addressed in future cases. Those questions include the meaning of the phrase "all reasonable measures" and, in particular, the nature and the extent of the burden that that provision may (as a matter of statutory construction and constitutional law) impose on corporations, through their "senior officers", to stop or prevent fault-based criminal conduct in order to avoid liability in circumstances where such officers are not themselves parties to the offence.

As a practical matter, the decision in Les Pétroles Global is (at least) a good reminder of the importance of implementing effective antitrust compliance measures and programs, including internal audit systems and regular courses and training. As the Court noted in Les Pétroles Global, the company had no directive or policy in place relating to compliance with the Competition Act.


1 Canadian Dredge & Dock Co v The Queen, [1985] 1 SCR 662 at para 13.  A company can have more than one "directing mind": see ibid at para 32. 

2 Rhône (The) v Peter AB Widener (The), [1993] SCR 497 at para 32.

3 See Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations).

4 R v Les Pétroles Global Inc, no 450-73-000633-085 (002), 9 August 2013 (SC).

5 Rhône (The), supra at paras 32 and 44-46.

6 See Les Pétroles Global, supra at paras 42 and 185. 

7 See ibid at paras 163-64, 202 and 210. 

8 See ibid at paras 63, 65-67, 78, 146 and 153, 157-58, 162 and 202-209.

9 See ibid at paras 136 and 139-45, 159, 212 and 213.

10 See R v Shell (1990), 45 BLR 231 (Man CA), aff'g (1989), 24 CPR (3d) 510 (Man QB).  At that time, and until it was decriminalized as part of amendments to the Competition Act in 2009, price maintenance was a criminal offence under Canadian antitrust law pursuant to section 61 of the Competition Act.

11 See Les Pétroles Global, supra at paras 190-200.

12 Another interesting question is whether, assuming for the sake of argument that Bourassa and Leblond were "senior officers", they were not also "directing minds" of Global insofar as they had been expressly delegated authority to design and supervise the implementation of corporate policy in a relevant sphere of corporate activity, namely the authority to set retail gas prices within their respective territories: see ibid at paras 118 and 136.

This article will appear in the next edition of the American Bar Association, Section of Antitrust Law's International Antitrust Bulletin.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.