2017 QCCQ 11545, 2017 QCCQ 11545

R. c. Dragan 2017 QCCQ 11545 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-73-002379-051 500-73-002380-059 DATE: September 27, 2017 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE B. JOLY, J.Q.C. ______________________________________________________________________ HER MAJESTY THE QUEEN The prosecution v.

JOHN DRAGAN The accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On July 24, 2017, the Court convicted John Dragan of four counts (counts 9 to 12 inclusively) of misleading advertising under s.52 of the Competition Act (‘’Act’’). [ 2 ] The judgement has been reported in writing, the Court doesn’t have the intent to repeat all the facts that have resulted in the conviction. [ 3 ] To summarize, counts 9 and 10 are linked to the Clear Vue product.

The advertisement said: “Uses the AC wiring of your home as a giant antenna”. “You may never need cable again”. “Improve the reception from even the weakest stations without paying a penny for cable service”. The Court took into account the testimony of an expert to conclude that the representation made to the public is false and misleading in a material respect (para. 138-146) and wrote at paragraphs 146 to 151 of its judgment: [146] The advertisement goes a lot too far.

The average consumer can only be duped by this announcement (…). [147] The Court adds that to be sure that the public will be confused, the advertisement shows two pictures: One shows the Clear Vue amplifier through a living-room window.

A larger image of antenna is added and linked to the small image by perspective lines that suggest signals being captured by the dish, when in fact the dish is not capable of capturing signals. [148] The Court doesn’t see any other reason for showing that, than to mislead the consumer. [149] It is the same thing in the second picture: A satellite antenna can be seen in the lower left corner of this image. A satellite appears in the upper right corner of the image. A satellite antenna is placed at the base of the letter “V” of the word “ Clear Vue ”.

Yet although Clear Vue is equipped with a small decorative plastic dish, it does not serve as a receiving antenna for satellite signals. [150] The fact of adding the word “Antenna” after Clear Vue in the title of the advertisement, is also something that misleads the public. [151] Finally, the advertisement uses also these phrases: “Improve the reception from even the weakest stations without paying a penny for cable service - Appréciez une réception claire comme du cristal même des stations les plus faibles sans payer un sou pour le service du câble”.

As the Court said before, it goes too far! [ 4 ] Counts 10 and 11 are linked with the representation to the public of a specific delivery period. The Court made its analysis in paragraphs 162 to 227 and concluded that Mr. Dragan’s conduct was dishonest. [ 5 ] The Court will review the accused’s different conduct at the time of the assessment of the mitigating and aggravating factors. [ 6 ] According to the witness evidence, Mr. Dragan sold approximatively 127 547 Clear Vue. It is in principle, million-dollar issue on sale.

The price per unit in Canada was 29.95$ while in the United States it was between US $12.95 and US $19.95. However, the distribution between Canadian and US sales is unknown. The revenue generated by sales is therefore difficult to assess. The defense submits that The Clear Vue represent approximatively 6% of sales, or about $3 million. [ 7 ] In addition, with respect to the Clear Vue, four counts were allowed and the Court acquitted Mr. Dragan in respect of two counts. It becomes very difficult to make a precise calculation of the profit from misleading representation.

[ 8 ] The estimated volume of commerce (“VOC”) earned by the two companies during the offence period, is more than $60.5 million; probably around 65$ million for all products sold. [1] [ 9 ] The reported net revenue for JD Marvel and John Dragan to the Canada Revenue Agency for the years 1999 to 2003 demonstrates that Mr. Dragan personally made over $1 million in revenues from JD Marvel. [2] Sentencing Submissions [ 10 ] The prosecution submits that the appropriate sentence should be 3.5 years of imprisonment and a prohibition order should be issued.

In cases where legislation has been designed to protect the public, such as misleading advertising provisions of the Act , careful consideration must be given to the principles of denunciation and deterrence, plus Mr. Dragan’s conduct is tantamount to fraud. [ 11 ] In support of its recommendation, the prosecution submits eight judgments including Benlolo , Hovila , Cheung and Fromstein . [3] The Crown also provided a table of the various sentence imposed for misleading advertising and deceptive telemarketing in other cases.

However, the Crown says that these cases can be distinguished on the basis of the fact that they are joint submissions for sentence upon an early plea, a significant mitigating factor. [ 12 ] The defense asks the Court to suspend the passing of sentence and direct that Mr. Dragan be released on the conditions prescribed in a probation order (three years with follow-up). The offender is ready to accomplish 240 hours of community service in a delay of 12 months.

He is also ready to make a donation of 10 000$ within 48 hours and three other donations of 5 000$ each; the first one no later than September 1 st , 2018; the other one, no later than September 2019 and the last one, no later than September 2020.The offender accepts that he will not use any tax receipt from these donations for tax purposes. [ 13 ] In support of its recommendation, the defense submits that contrary to the judgments cited by the prosecutor, Mr. Dragan was the president of two legitimate companies. There was sale of real products, at real prices and with real profits.

There was also real bankruptcy. [ 14 ] About the prohibition order, the defense wrote:” De plus, nous ne contestons pas l’imposition d’une ordonnance d’interdiction conforme à l’ article 34(1) de la

Loi sur la concurrence qui viserait à:” …interdire la continuation de l’infraction ou l’accomplissement, par cette personne ou par toute autre personne, d’un acte qui tend à la continuation ou à la répétition de l’infraction . » [ 15 ] The defense submits that the interdiction subsequently proposed is excessive in view of the circumstances of the case. The prohibition order should target misleading representations in connection with the sale of Clear Vue and all other similar products. Mr. Dragan can also be personally prohibited from making representations with respect to delivery times.

The defense accepts the conditions found in paragraph 3 of the prohibition order and doesn’t have any objection that the application period would be 10 years instead of 5 years as proposed. The principles of sentencing [ 16 ] The sentence must be proportionate to the gravity of the offence and the sentence must be proportionate to the degree of responsibility of the offender. The appropriate sentence, as

section 718 of the Criminal Code tells us, is just punishment for the stated penological objectives: (

a) denunciation; (

b) general and specific deterrence; (

c) neutralization; (

d) reinsertion; (

e) reparation for harm to victims or to the community; and (

f) assumption of responsibility . [ 17 ] A sentence for a particular offence must be similar to a sentence imposed on similar offenders for similar offences committed in similar circumstances. The judge must take into account the mitigating and aggravating factors. A sentence must be individualized. [ 18 ] Finally, an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (718.2

d) C.cr . ). Analysis [ 19 ] The defense submits that the main judgements cited by the prosecutor are irrelevant and not comparable since in those cases, the companies were created for the purpose of defrauding people. The whole purpose of the business is to defraud. These kind of business are problematic. We find in these judgments the words scam, fake and so on. We are far away from the judgments cited by the Crown. [ 20 ] The defense is partly right. Mr. Dragan’s companies are legitimate (at least the first one). On the other hand, some of Mr.

Dragan’s behaviors are similar to those found in the judgements cited by the prosecution. In addition, the general principles and comments relating to the 1999 amendments to s.52 of the Competition Act are of interest. [ 21 ] The defense cites a judgment; a civil case: The Commissioner of Competition (Applicant) and Gestion Lebski inc et als (Respondents). [4] It is in the matter of an inquiry under subparagraph 10 (1) (b) (ii) of the Competition Act and in the matter of an application by the Commissioner of Competition for an order under

section 74.1 of the Act . The defense says that there is no case that could be compared to the present situation except in civil case. That is why this judgment is cited. [ 22 ] At its paragraph 52, we understand that there are changes that create a combination criminal/civil regime to address misleading representation and deceptive marketing practices. There will be a great deal of flexibility and this flexibility will enable the competitive bureau to tailor its approach and use the tools that are most effective for each different situation. [ 23 ] It is exactly what the Crown did when the choice was made to bring this case under

section 52 of the Competition Act . It is in this regard that the Court acquitted the accused on some counts and declared him guilty on some others. [ 24 ] The Court retains that criminal sanctions will remain in place but only for the most serious cases of misleading advertising.

[ 25 ] The Court is also mindful that the accused is sentenced under the provisions of the Competition Act and not the Criminal Code for fraud. The maximum sentence for each count is five years. [ 26 ] A reminder: - The maximum penalty is exceptional, it should not be reserved for the worst crime committed in the worst circumstances. It applies if the circumstances justify it. [5] [ 27 ] - The advanced age of an accused must be taken into account when determining the sentence to be imposed. However, this age- old factor must be evaluated in terms of the offender’s life expectancy.

In Thibault , despite of her age 76 and a physical disability, the Court of Appeal refused to intervene on the grounds that despite her age, there was no evidence that Mrs. Thibault could not complete her sentence before her death.

Age is not a determining factor but merely a factor to consider. [6] [ 28 ] - Health status: “…, si au moment du prononcé d’une peine, l’état de santé d’un contrevenant âgé ne permet pas de croire qu’il a peu de perspectives de compléter sa peine d’incarcération avant son décès, le juge dispose alors de toute la discrétion requise pour prononcer la peine qu’il estime appropriée selon les facteurs et les critères habituels.” If the delinquent state of health deteriorates after sentencing, then it is no longer a question of sentencing but its implementation.

It is then up to the competent prison authorities to take the necessary measures. The judge doesn’t have to speculate on the possible deterioration in the state of health of the offender. [7] [ 29 ] – Coverage of charges or Media attention: This is a relevant contextual element. The more this factor is supported by the evidence, the more the judge must consider it, while weighing it with the other elements and objectives of the sentence. Public humiliation contributes to the dissolution and denunciation. [8] [ 30 ] The accused chose not to go to Court and no pre-sentence report was requested.

The Court therefore has little information on the consequences of the offence in his life and his current situation. The mitigating factors [ 31 ] - Regarding the offender’s collateral penalties, the media coverage of charges is alleged but little evidence is presented for this assertion. We know that a press release was issued by the Competition Bureau, as permitted, on the charge and conviction. This is not denied by the prosecution. The defense also speaks of electronic and written media but does not go further.

The Court does not know its importance. [ 32 ] The mere disclosure of the crime and its perpetrator does not, in itself, allow inferring consequences that would make it a mitigating factor. [9] The Court is not aware of its effect on the offender’s occupational stability, emotional stability or humiliation of the accused and his family. The Court should speculate on its importance and impact in considering the matters in a serious or probative way as a mitigating factor. [ 33 ] - Lack of judicial record: it is the first time that Mr. Dragan is convicted of a full mens rea criminal provision.

The Court can’t use the fact that he entered into a voluntary undertaking as an aggravating factor in any fashion whatsoever. However it does colour his behavior that began in 1999. Consequently, the fact that Mr.

Dragan comes before the Court without a criminal record would normally be a stronger mitigating factor than it is in this case. [ 34 ] The defense adds that the charges date from 2005 for crimes committed between 1999 and 2004 and there was no subsequent offence. [ 35 ] It is true that the courts are inclined to grant a degree of clemency to offenders who are successful in not repeating criminal behavior for a long time; demonstrating a capacity for social reintegration.

The Court will take it into account. [ 36 ] The passage of time, however, does not always succeed in obviating the imperatives of denunciation and deterrence. [ 37 ] If this passage of time is presented as a minimal risk of recidivism, or an attitude toward social reintegration, it is important to note that Mr. Dragan still sells, on Amazon.com under the name of “ Dealicious” , various items of little value.

The two lawyers accept to provide the search made by the Crown for that site after the pleadings as well as the comments of each lawyer on this subject. [ 38 ] The Court notices that for leather moccassins , on 62 comments, a score of 3.5/5 is given by the customers. For leather ID wallet , on 87 comments, there is a score of 3.6/5. For unisex talking watch…, on 17 comments, a score of 2.5/5. For 5 slot slim ID wallet , on 22 comments, a score of 3.7/5 and finally, for front pocket bi-fold wallet , on 7 comments, a score of 3.4/5.

It is a very ordinary score. [ 39 ] For the leather moccassins , the Court notices some comments to the effect that the customer ordered a size X and received a size Y with a sticker indicating the size X. For the leather ID wallet , the picture shows a driver license in it. A client says, the drivers licence won’t fit in the front of the wallet. Another writes: ‘’ (…) do not have to pull tabs on them (as advertised) so the zipper gets stuck under the belly of the wallet (…); ‘’ the wallet is NOT leather!

Some cheap synthetic material (…)’’ [ 40 ] Here are a few others examples of comments: “The piping broke immediately’’; ‘’Shoelace broke on both slippers the first time my husband tied them”; “left moccasin is wider than the right one”, etc. [ 41 ] Even if the accused doesn’t have to testify to convince the judge of the low risk of re-offending, it could be useful. The products sold are once again products sold at minimum prices which imply a minimal quality with the complaints that we find in the produced documents. [ 42 ] How does Mr. Dragan manage or will manage with that?

It seems that he puts himself in a fragile situation. Did he really learn from the accusation? The Court concludes that without any other proof, it can’t rule out the risk of recidivism despite the lapse of time since the charges were laid. [ 43 ] - Poor health of the accused and his age : Mr. Dragan is 62 years old. We are not talking about an elderly person. The defense

produced two documents, namely a prescription sheet on which Dr. Margery Comeau wrote: ’’This patient has celiac disease since his childhood and requires a gluten free diet. He is on ( unreadable word ) for cardioryophaty/melatic mitral valve and requires month ( unreadable word ) tests or more even every 2 weeks.’’ Another document come from Mc Gill University Center, division of Cardio- thoracic Surgery on which we find: operation date 12/march/2009 valve: “Mitral valve replacement with on-x-size 25/33 metallic prosthesis. Post-op events: Acute delirium secondary to hypoxia, severe anxiety (…).

This document was obtained in 2009. It explains what occurred at the period of the operation. [ 44 ] Finally, is attached to this document, a medical certificate of incapacity for work or to appear at court, for a three-month period to recover from a recent heart surgery. The date in handwriting, is 2009. [ 45 ] No further information or explanation was provided. [ 46 ] The defense recommends community service. It therefore admits that the health of Mr. Dragan allows it. [ 47 ] The Court can’t speculate as to what this operation or situation involves in its daily life except on what is found on these documents.

From these facts, it is certain that the Court can’t conclude that it should exclude a jail sentence. The Court must consider all others factors. [ 48 ] - Steady job: we know that Mr. Dragan sells products of little value on Amazon.com. The evidence doesn’t reveal how long he has been trading on this platform or at what frequency, and if the resulting revenue allows him to make a living. [ 49 ] - Ruin: bankruptcy of the two companies.

This should normally be considered in assessing the requirements of denunciation and deterrence, as financial ruin is often significant for the offender. [ 50 ] The defense produces a document from the bankruptcy of JD Marvel. The first two creditors on the list, are 3569055 Canada Inc. and 3569063 Canada Inc. for a total amount of $160,722.70. The defense pleads that these companies belong to Mr. Dragan and his spouse. The last creditor is Dragan, John & Vera Zubenko for an amount of $203,435.41. [ 51 ] For the defense, all this proves that Mr.

Dragan and his wife have put a lot of money into JD Marvel before this company goes bankrupt. The Crown objects to this

interpretation and questions these claims. There was, however, no objection to the filing of this document. [ 52 ] The Court therefore accepts the document as it stands but can’t go further. The Court does not know if certain amounts of money have been recovered; if Mr. Dragan was personally ruined. Did he lose all his movable or immovable property?

The aggravating factors [ 53 ] - The objective gravity : the prescribed penalty at the time of the offences pursuant to s. 52(5) of the Act was a fine or a term of imprisonment not exceeding five years or both. [ 54 ] - Leading role in the commission of offences : the accused was the majority shareholder, Director and senior officer of JD Marvel and CMOE. All advertising content was approved by Mr. Dragan. He is the one who makes decisions about what to do when he is informed of the lack of inventory, delays, etc. When Mr.

Dragan starts to feel the heat , he is the one who creates a new company which will act exactly in the same way as the first. He is also the one who, when informed that the customer service by telephone was horrendous, is asking employees to keep cashing checks. His involvement is everywhere. [ 55 ] - Premeditation and degree of planning: Mr. Dragan knew and endorsed the advertising.

The Court, in its judgment, wrote, among others: “ The average consumer can only be duped by this announcement ”; “ To be sure that the public will be confused, the advertisement shows two pictures… ’’ and “ The Court doesn’t see any other reason for showing that, than to mislead the consumer ”. Mr. Dragan didn’t make any effort to correct it and the advertisement had been used for a long period. [ 56 ] Mr. Dragan was also well aware of the problems associated with the delays and was well aware of the complaints. He knew that there was no inventory.

The Court wrote: “ The proof reveals that there is no stop in the mailing inserts or catalogs. If there is no inventory and the mailing continues to be in thousands or millions, it is certain that even when the inventory arrives, there will not be enough products to satisfy all consumers .’’ [ 57 ] He knew that he has to respect the delays and regulations. Since 1997, his company JD Marvel and/or himself, have been aware of the offences of the Competition Act . [10] [ 58 ] More specifically, in May 1997, he signed for himself and his company, a voluntary undertaking in relation to the inventory.

He had to have an inventory of goods enabling them to deliver the goods ordered by a consumer within a maximum of 35 days of the application formulated by the latter. [11] [ 59 ] Despite all these warnings or maybe because of that, he continues and even requires his employees that they prioritize complaints from clients who pass through the Better Business Bureau or who send registered letters. It is clearly a strategy to avoid the scrutiny of law enforcement. [12] [ 60 ] Finally, he even incorporate a new company.

It is clear that this company is incorporated to avoid his obligations. [ 61 ] It is easy to conclude that there is premeditation and planning for counts 9, 10, 11 and 12. [ 62 ] - Unregulated carelessness: the Court wrote in its judgment, para. 227: “ It is clear that even if he was aware of the risk, he just didn’t care. This is dishonest.” Even if this factor is usually more used in a context of disregard to the safety and lives of others, we can draw a parallel. For Mr. Dragan, there is only profit that counts despite all the calls of people in tears (often elderly people).

[63] - Moral culpability: what degree of moral culpability attached to Mr. Dragan? The defense says, JD Marvel is a legitimatebusiness that crosses the line. There are real products and real prices. [64] We have to remember that for counts 9 to 12, the Court convicted the accused because the evidence was made, beyond areasonable doubt, of a full mens rea. [65] As mentioned above, Mr.

Dragan was well aware of the false advertising, well aware of the Competition Act and its effects[13],the commitments he or his company had taken[14], the tears of the victims, the lack of inventory, the strategy adopted when there arecomplaints, etc., and he decided to continue in the same way; thereby refusing to take appropriate corrective action. He evenincorporated a new company. It is dishonest. His conduct was deliberate and demonstrates that he had very little regard for court orders,commitments and people. [66] His moral culpability is high. [67] For CMOE, it is from the beginning.

For JD Marvel, it is close to the beginning. He is the one who accepts this kind ofadvertisement and he was always well informed by his employees, of the inventory and complaints. [68] The Court wrote at para. 15: “Between March 18, 1999 and December 31, 2001, the Competition Bureau analysed 1622complaints received from customers in regard to JD Marvel: 1466 complaints for non-delivery of the product and 710 complaints forunreasonable delay (…)” [69] - Duration of the infringement: for counts 9 and 11 : 4 years. Counts 10 and 12: 8 months in the context known.

When he felt theheat, he incorporated this new company. [70] - Victims: at the time of the bankruptcy, 14 616 people had not obtained the 28 903 products ordered and paid (P-90). It is a lotand directly linked to his way of acting. [71] There are also a lot of victims who received their product long after ordering them and often after several calls and complaints.The Court doesn’t know the number. [72] The victims come from Canada and U.S.A. [73] The defense mentions that the Court has to take into account that some victims, once the product received, were satisfied.

Thereis therefore no serious impact. [74] At the trial, the defense produced exhibits D-26 to D-32 for this purpose. In fact, these documents were produced in link withcounts 7 and 8. “améliore la qualité des signaux captés par la television”. The Court wrote, para. 133: “The Court is not surprised to learnthat seven customers wrote: “the biggest surprise is that the antenna actually improves the reception on my little TV’’ (…).

Para. 134:”The Clear Vue is able to ameliorate the quality of the image in a particular context and it is highly possible, that it is customers in thissituation, who will want the product. Para. 135: “Because we’re not in an administrative context or a regulatory regime, the Courtconcludes, for counts 7 and 8, that the Crown did not discharge its burden of proof.” [75] The Court has to sentence Mr. Dragan on counts 9, 10, 11 and 12 only. We know that there were a lot of complaints but the Courtdoesn’t have any other proof about the satisfaction of clients.

The fact that the value of the goods sold is minimal surely has somethingto do with that. [76] For the same reason, it is easy to conclude that there is a minimal material damage for each of the victims. However, if we takeinto account all the victims, material damage is much more important. [77] - The company’s scope and profits: the estimated volume of commerce (“VOC”) earned by the two companies during the offenceperiod, is more than $60.5 million; probably around 65$ million for all products sold.[15] [78] The Clear Vue represent approximatively 6% of sales, or about $3 million according to the defense.

There is no doubt thatdeadlines have been met and that people have received goods from which they have been satisfied. [79] The Court has to be careful about the VOC. The evidence does not establish a clear division between the transactions involvingmisleading representations and the others. [80] The profit margin reported is between .04 % and .09 %. For 2002 and 2003, JD Marvel reported a loss of $1.395 million inincome even if the company sold for more than $30 million.[16] [81] Finally, for the years 1999 to 2003, Mr.

Dragan personally made over $1 million in revenues from JD Marvel.[17] It is aconsiderable amount; not insignificant. [82] The two lawyers agree that the Court should not make a restitution order. [83] With regard to a substantial sentence, like the one suggested by the Crown, in Benlolo[18], the Ontario Court of Appeal wrote: [17] Prior the amendments, misleading advertising was regarded and treated as a regulatory offence.

In R v Wholesale Travel Group Inc.(1991), (SCC), 67 C.C.C. (3d) 193 at 238 (S.C.C.), Cory J. stated: (…) The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers andmotorists, to name but few) from the potentially adverse effects of otherwise lawful activity. Although a sentence of incarceration was available under the former provision, courts tended to impose fines rather than custodial

sentences for this and other offences under the Competition Act . (…) [ 84 ] In its paragraph 19 : " In deciding that a substantial sentence of incarceration was warranted and appropriate in this case, the trial judge distinguished the pre-1999 case law. She concluded than in making the amendments, Parliament intended that serious, egregious cases that had the hallmarks of fraud would be treated as criminal matters, while the cases that new more akin to sharp practice could be processed through the new civil stream.

I agree with the trail judge that the 1999 amendments constitute a watershed in the treatment and approach to misleading advertising and that the pre-1999 case law must therefore be viewed with caution.” [ 85 ] The need for denunciation and deterrence: In its paragraph 21: ‘’ The trial judge that a significant sentence was required in order to denounce this kind of conduct and to demonstrate that this type of misleading advertising on a large scale is not merely unethical, but criminal.

It undermines the Canadian economy that operates on the premise and understanding that consumer business dealings entered into in good faith are legitimate.’’ [ 86 ] In conclusion, the Court has to balance all the circumstances and the established principles. [ 87 ] The facts in Benlolo , Hovila , Fromstein and Cheung are not the same as in the present case. There is no proof that JD Marvel was incorporated to defraud or mislead the public. For CMOE , there is a nuance, Mr.

Dragan clearly incorporated this company to avoid the consequences of his actions and to continue in the same way. [ 88 ] For the Clear Vue advertisement, there is more than a sharp practice. The words and photos used can only mislead the consumer. This should be denounced. [ 89 ] Concerning the delays, it’s even worse: Mr. Dragan has received so many warnings before without worrying about changing his way of doing things. He completely ignored the consequences of his behavior. He even used a strategy to avoid being denounced to the authorities and incorporated a new company.

It becomes imperative to denounce his behavior and to dissuade others from doing the same. [ 90 ] In regard to the aggravating and mitigating factors, the fact that there is a full mens rea , that the public has to be protected, the Court concludes that a substantial sentence has to be given. [ 91 ] The sentence sought by the prosecutor is, however, too high. We have to take into consideration that via his companies, Mr. Dragan didn’t sell all products by the use of false and misleading advertisements. [ 92 ] Mr.

Dragan has to be sentenced for the sale of Clear Vue (counts 9 and 10) and for the delays. [ 93 ] The sentence sought by the defense can’t also be followed. The mitigating factors are not the most reassuring. Such a sentence would not meet the criteria for denunciation and deterrence. [ 94 ] A fine can’t be imposed. The Court has little or no information on the financial situation of the accused; which could help in its decision. More importantly, imposing a fine in the circumstances, would only perpetuate the idea that this kind of offences is relatively harmless.

It will also wrongly send the message that it is a permit giving the right to disregard the established rules and to act illegally or a cost of doing business. [ 95 ] In Benlolo , the two most involved accused were sentenced to 34 months after credit for two months pretrial custody, with a $400,000 fine. In Hovila , the accused was sentenced to 30 months of incarceration. In Cheung , the two most involved accused were sentenced to two years and in Fromstein , the accused is also sentenced to two years. [ 96 ] In all these cases, companies are designed with the sole purpose of defrauding the consumer.

Even though the timeframes in which the offence is perpetrated are often shorter than those found in this case, the Court concluded that a lesser sentence should be imposed on Mr. Dragan. [ 97 ] For counts 9 and 10: The imposition of a 10-month sentence reflects the crime committed in the circumstances in which it was committed. For counts 11 and 12: a 18 months sentence reflects the crime committed and the circumstances in which it was committed. [ 98 ] A conditional sentence, in the present case, is not appropriate.

As mentioned above, the Court has not enough information to conclude that there is a low risk a recidivism. The proof reveals that Mr. Dragan continues to put himself at risk. His work of which little is said, seems to be done without thoroughness. The limited information known by the Court shows that several consumers have commented negatively on what is described in the advertisement and what is received. [ 99 ] In the past, he has ignored some commitments even voluntarily signed. [ 100 ] It is difficult to conclude in that context, that Mr. Dragan presents no danger for the community.

A conditional sentence won’t have the appropriate denunciatory and deterrence effect. [ 101 ] With respect to the prohibition order: the subsection 34(1) of the Competition Act : “ Where a person has been convicted of an offence under

Part VI, the court may, at the time of the conviction, on application of the Attorney General of Canada or the attorney general of the province, in addition to any other penalty imposed on the person convicted, prohibit the continuation or repetition or prohibit the doing of any act or thing , by the person convicted or any other person, that is directed toward the continuation or repetition of the offence .” (The Court underlines) [ 102 ] It is clear that the legislator wants to prevent the risk of re-offending and gives the judge the inherent powers to do so. [ 103 ] Like the defense said, Mr.

Dragan was already under a prohibition order in 1997 for a specific product, a “mosquitoe repellors’’.

[ 104 ] He is now convicted of a more serious offence for another product and he put himself in a very fragile and risky situation with ‘’ Dealicious’ ’. (see paragraphs 38 to 42) [ 105 ] The Court concludes that limiting the prohibition order to Clear Vue and delays won’t have the desired effect. [ 106 ] Prohibiting the accused from selling goods that consumers have not seen before buying them and that are not handed over hand to hand, (in all cases, there should be no shipping) fulfils the purpose of

section 34 of the Act , that is, its prevents the accused from giving to the public false or misleading representations on an important point in order to promote the product. [ 107 ] This solution does not prevent the accused from having a storefront, does not prevent him from continuing to trade, does not prevent him from advertising or promoting a product and it protects the public.

FOR THESE REASONS, THE COURT : IMPOSES a sentence of 10 months imprisonment on counts 9 and 10; IMPOSES a sentence of 18 months imprisonment on counts 11 and 12; IMPOSES a prohibition order for 5 years which is attached to this judgment. __________________________________ DOMINIQUE B. JOLY, J.C.Q Me Narissa Somji and Me Stepeh Fitspatrick For the Crown Me Robert Israel For the accused Date of hearing: September 7, 2017