r v. R., 2016 QCCA 1425

Unofficial English Translation Proulx c. R. 2016 QCCA 1425 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005389-133 and 500-10-005401-136 (450-73-000744-106 and 450-73-000744-106) DATE: SEPTEMBER 9, 2016 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A. No. 500-10-005389-133 LINDA PROULX APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix No. 500-10-005401-136 MICHEL LAGRANDEUR APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellants appeal from a judgment rendered on March 22, 2013, by the Superior Court, Criminal Division, District of St- François (the Honourable François Tôth), convicting them of conspiring to prevent or unduly lessen competition in the market of Magog, thereby committing the indictable offence set out at s. 45(1) (

c) of the Competition Act . [ 2 ] For the reasons of Bélanger J.A., with which Morissette and Kasirer JJ.A. agree, THE COURT : In file number 500-10-005389-133 ( Linda Proulx v. R. ): [ 3 ] GRANTS the application for leave to file an additional statement; [ 4 ] ALLOWS the appeal; [ 5 ] ORDERS that a new trial be held; In file number 500-10-005401-136 ( Michel Lagrandeur v. R. ): [ 6 ] DISMISSES the appeal. YVES-MARIE MORISSETTE, J.A.

NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A.

Mtre Thomas Walsh For Linda Proulx Mtre Jean Beaudry Beaudry & Associés For Michel Lagrandeur Mtre Louis Champagne Public Prosecution Service of Canada For the respondent Date of Hearing: November 25, 2015 REASONS OF BÉLANGER J.A. [ 7 ] Before the Superior Court, [1] the appellants were convicted of having, in Magog and various other locations in Quebec, between on or about May 27, 2005 and on or about May 29, 2006, conspired, agreed or arranged with 19 other named persons and others still unknown to prevent or lessen competition in the retail sale of regular gasoline in the Magog market by fixing the price of gasoline, thereby committing the indictable offence under s. 45(1) (

c) of the Competition Act . [2] [ 8 ] They were tried with Yves Gosselin, territory representative for Irving, who was charged with having conspired with several persons, including the employees of the Couche-Tard chain of convenience stores, to lessen or prevent competition in the Sherbrooke market. Gosselin’s appeal will be heard separately. [ 9 ] In accordance with s. 675(1)( a )(ii) Cr.C. , the appellants were granted leave to appeal from the conviction [3] on grounds that involve questions of fact and questions of mixed law and fact. *** [ 10 ] An

article published on June 6, 2004 reporting that a Victoriaville-area gas station was being pressured by its competitors led the Competition Bureau to initiate operation “Octane”. The investigators were authorized to conduct electronic surveillance and to make field observations. A first period of electronic surveillance took place from March to June 2005, and a second from December 21, 2005 to April 18, 2006. The Bureau also obtained 88 search warrants. The investigation revealed coordinated gasoline price increases at specific times of day.

The increases revealed during electronic surveillance were verified in the field. In June 2008, the investigation led to a first wave of charges being laid against gas retailers and oil companies in four separate markets: Victoriaville, Thetford Mines, Sherbrooke, and Magog. [ 11 ] A second wave of charges laid in June 2010 reached the appellants, each of whom operate a service station in Magog.

The judgment [ 12 ] The judge found that the evidence demonstrated beyond a reasonable doubt that between April 2005 and May 2006, there was a conspiracy to fix the price of regular gasoline in the Sherbrooke and Magog markets and involving several dozen people. This conspiracy prevented or unduly lessened competition in those markets. This finding is not challenged before us. I note that these facts were initially admitted by the appellants, as was the manner in which the conspiracy operated. The issue was therefore whether the accused participated in this conspiracy preventing or unduly lessening competition.

The appellants later withdrew their admission that the conspiracy prevented or unduly lessened competition. Due to the withdrawal of the admission, the judge allowed the respondent to complete its evidence. [ 13 ] The judge provided a thorough description of the scope of the conspiracy between important players operating outside the Sherbrooke and Magog markets. He accepted that the Centre de prix des dépanneurs Couche-Tard (Céline Bonin) in Laval was at the heart of the gas price-fixing conspiracy.

Between 2004 and 2006, Pierre Bourassa, who worked for Groupe Olco and Pétroles Global, would decide on the increase for corporate service stations together with the Centre de prix de Couche-Tard, which owns a chain of convenience stores (over 330 in Quebec) that operate under the banners of various oil companies. Once the price increase was agreed upon, he would communicate with his network of messengers in the Sherbrooke and Magog markets. The increase would occur at opening in Sherbrooke and at closing in Magog.

The judge also heard the testimony of Stéphane Grant who, at the relevant time, worked for Irving Oil on the North Shore (Trois-Rivières to Sept-Îles including Lac St-Jean) and also, for a time, the south shore of the Saint Lawrence to Gaspésie.

Grant would also communicate with the Centre de prix de Couche-Tard and then inform the Irving Centre de prix in New Brunswick, which relayed the information to its retailers. [ 14 ] This evidence, along with the testimony of the expert Boyer and the intercepted telephone conversations, allowed the judge to conclude that the parties involved in the conspiracy (Pierre Bourassa, Michel Dubreuil, Micheline Cabana, and Céline Bonin) were perfectly aware of the illegal nature of their enterprise and that the evidence revealed beyond a reasonable doubt that there was a conspiracy among several dozen people to fix the price of regular gasoline in the Sherbrooke and Magog markets between April 2005

and May 2006. [ 15 ] The judge also concluded that the appellants Linda Proulx and Michel Lagrandeur participated in this conspiracy. For different reasons, they challenge this finding. ANALYSIS General background [ 16 ] At the time of the offences, subsection 45(1) of the Competition Act [4] provided as follows:

(1) Every one who conspires, combines, agrees or arranges with another person [...] (

c) to prevent or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance on persons or property, or [...] is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both. [...] Proof of intent

(2.2) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it is necessary to prove that the parties thereto intended to and did enter into the conspiracy, combination, agreement or arrangement, but it is not necessary to prove that the parties intended that the conspiracy, combination, agreement or arrangement have an effect set out in subsection (1). [...] [Emphasis added] 45.

(1) Commet un acte criminel et encourt un emprisonnement maximal de cinq ans et une amende maximale de dix millions de dollars, ou l’une de ces peines, quiconque complote, se coalise ou conclut un accord ou arrangement avec une autre personne: [...]

c) soit pour empêcher ou réduire, indument, la concurrence dans la production, la fabrication, l’achat, le troc, la vente, l’entreposage, la location, le transport ou la fourniture d’un produit, ou dans le prix d’assurances sur les personnes ou les biens ; […] Preuve d’intention

(2.2) Il demeure entendu qu’il est nécessaire, afin d’établir qu’un complot, une association d’intérêts, un accord ou un arrangement constitue l’une des infractions visées au paragraphe (1), de prouver que les parties avaient l’intention de participer à ce complot, cette association d’intérêts, cet accord ou cet arrangement et y ont participé, mais qu’il n’est pas nécessaire de prouver que les parties avaient l’intention que le complot, l’association d’intérêts, l’accord ou l’arrangement ait l’un des effets visés au paragraphe (1). [...] [Emphasis added] [ 17 ] In 2009, the Canadian legislature reformed competition law and amended the provision to lighten the prosecution’s burden.

The prosecution would no longer have to prove the anti-competitive effects of the conspiracy or prove that the conspiracy would likely lessen or unduly prevent competition. Because the offences were committed prior to the reform, the prosecution had to show the undue effect of the conspiracy on competition. The judge determined that the onus had been met. This issue is not challenged before us. [ 18 ] Authors Bériault, Renaud, and Comtois aptly summarize the constitutive elements of the offence as it existed in 2009:

[ translation ] Because s. 45 is a criminal provision, it is incumbent upon the Crown to prove each of the constitutive elements of the offence beyond a reasonable doubt. These elements include a substantive component (the actus reus ) and an element of intent (the mens rea ). The actus reus can be broken down as follows: 1. the existence of an agreement to which the accused was a party; 2. this agreement prevents or lessens competition; 3. the prevention or lessening of competition is undue.

As for the mens rea , the Crown must prove the following two elements: 1. the subjective intent to enter into the agreement; 2. the objective intent to unduly lessen competition. [5] [ 19 ] As the judge recognized, evidence of the conspiracy was admitted. It is worth reproducing the content of the admission as to the manner in which the conspiracy operated: [ translation ] 3. This conspiracy generally operated as follows: (

a) When the price of gasoline increased in the Montreal area, a concerted effort to increase prices in all Sherbrooke and Magog service stations was initiated. (

b) The price modification in Sherbrooke took place in the morning, followed by the price modification in Magog at closing that same day. (

c) The instigator of these attempts was generally Pierre Bourassa, representative of the company Global Fuels, which operated service stations under the Olco banner. He would communicate with Céline Bouin, Carole Aubut, and Louise Bonami, employees of the price centre for the company Couche-Tard, which operated service stations using that name but under various banners: Couche-Tard/Ultramar, Couche-Tard/PetroCanada, Couche-Tard/Irving, and Couche-Tard/Esso, to obtain their agreement on the price set and the time the modified pump price would begin at the pump. (

d) Once an agreement was reached, Pierre Bourassa would continue making calls, contacting the people responsible for setting prices at other service stations to obtain their agreement to adjust their prices so that these also corresponded with that agreed upon with the Couche-Tard employees, and to communicate in turn with their own contacts in other service stations so that they would do the same: Micheline Lapointe Cabana, owner of Dépanneur Cabana in Magog; Gisèle Durand, owner of Dépanneur Mi-Vallon in Sherbrooke; Michel Dubreuil, owner of the Esso-Dunat and Esso Queen service stations in Sherbrooke; France Benoît or Johanne Jutras, representatives of the Les Pétroles Therrien, which operated service stations under the Pétro-T banner. (

e) once the price hike was initiated, the conspiracy participants would call each other to check whether the price modification had taken place as agreed. [ 20 ] The accused’s participation in the conspiracy is the key element of their challenge. To demonstrate this participation, the respondent had to show, beyond a reasonable doubt, that the accused were parties to the agreement and that they had the necessary culpable intent to do so. The requisite mens rea for the charge of conspiracy under the Competition Act was clearly defined by the Supreme Court in R. v. Nova Scotia Parmaceutical Society : [6] 117.

The sections of the Act set out above require the proof of two fault elements: one subjective, the other objective. 118. To satisfy the subjective element , the Crown must prove that the accused had the intention to enter into the agreement and had knowledge of the terms of that agreement. Once that is established, it would ordinarily be reasonable to draw the inference that the accused intended to carry out the terms in the agreement, unless there was evidence that the accused did not intend to carry out the terms of the agreement. 119.

In order to satisfy the objective element of the offence , the Crown must establish that on an objective view of the evidence adduced the accused intended to lessen competition unduly. This surely does not impose too high a burden on the Crown. Section 32(1) (

c) requires that the Crown demonstrate that the effect of the agreement will be to prevent competition or to lessen it unduly. Once again, it would be a logical inference to draw that a reasonable business person who can be presumed to be familiar with the business in which he or she engages would or should have known that the likely effect of such an agreement would be to unduly lessen competition.

Thus in proving the actus reus that the agreement was likely to lessen competition unduly, the Crown could, in most cases, establish the objective fault element that the accused as a reasonable business person would or should have known that this was the likely effect of the agreement. [ 21 ] The Supreme Court judgments Carter [7] and Mapara [8] set out the evidentiary rules applicable to the admissibility of the acts and statements of co-conspirators.

[ 22 ] To find an accused guilty of conspiracy, the judge (or jury) must be convinced beyond a reasonable doubt that (1) the conspiracy alleged in the indictment occurred and (2) the accused participated in the conspiracy. [ 23 ] At the first stage, the judge must be convinced beyond a reasonable doubt that there is a conspiracy. This can be proved through any relevant evidence. This has been achieved here. [ 24 ] At the second stage, the judge must be sure, on a balance of probabilities and considering only evidence directly admissible against the accused, of the latter’s participation in the conspiracy.

In the presence of such evidence, it is then open to the judge, at a third stage, to allow into evidence acts and statements of co-conspirators made in the pursuit of a common object. In R. v. Carter , [9] McIntyre J. explained the admissibility rule for the statements of co-conspirators, one of the exceptions to the general hearsay rule. As a result, the acts committed by the co-conspirators and the statements made to accomplish the common object (the overt acts) are admissible against each of the accused, subject to certain conditions.

According to this understanding, co-conspirators are considered to be each other’s mandataries. [10] [ 25 ] As McLachlin C.J. explained in Mapara , the co-conspirators exception allows the Court to admit into evidence extrajudicial statements made by co-conspirators in furtherance of the conspiracy. The exception is stated as follows: “Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object ” (J. Sopinka, S. N.

Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 303).

Following Carter , co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy. [11] [Emphasis added] [ 26 ] In Mapara , the appellant called into question the co-conspirator’s exception when the statement contained double hearsay. [ 27 ] After explaining that the admissibility of the statements was a priori reliable and necessary, as required under the principled approach to the hearsay rule, the Court refused to revisit the rule.

The Chief Justice, for the majority, opined that the rule in Carter guarantees a priori the requisite reliability since the conspiracy must be demonstrated beyond a reasonable doubt, the accused probably participated, and overt acts are usually spontaneous. She pointed out, however, that in rare cases judges should exclude the evidence given the particular circumstances.

This could be the case where the evidence is unreliable and likely to mislead the jury or where its prejudicial effect outweighs its probative value. [ 28 ] When the statements are admitted into evidence, the trier of fact will examine their ultimate reliability and probative value. *** [ 29 ] Each of the appellants argues that they did not intend to join the conspiracy but set their prices based on their own observations of the competition’s prices. [ 30 ] Conscious parallelism was explained by Investigator Guay as one retailer increasing or decreasing its prices to copy those of its competitor, but without any collusion to speak of. [12] [ 31 ] Authors Bériault, Renaud, and Comtois explain conscious parallelism as [ translation ] “the behaviour of businesses in an oligopoly, i.e. a market with a small number of vendors, usually selling a homogeneous product, who independently adopt similar conduct”. [13] [ 32 ] Adopting a comparable or identical pricing policy without an agreement – which by definition requires a meeting of minds – does not fall within the scope of s. 45 of the Competition Act . [14] The standard of review [ 33 ] In accordance with s. 686(1)( a )(ii) Cr.C. , the Court of Appeal may allow an appeal if it is of the opinion that the trial judgment should be set aside because it is wrong on a question of law. [ 34 ] An error with respect to the applicable principles of an evidentiary rule constitutes an error of law within the meaning of s. 686 (1)( a )(ii) Cr.C.

However, a question of law does not include the issue of whether the judge drew the right conclusion from the established facts. On this subject, Mtre Tristan Desjardins explains: [ translation ] 396. To allow an appeal on the ground that the impugned judgment contains an error on a question of law, the appellate court must obviously first determine whether a wrong decision on a question of law was indeed made.

The term “question of law” means that the error must relate to the law in the strict sense of the word; thus, a “question of law” does not include questions directly or indirectly relating to differences of opinion regarding, for example, an assessment of the sufficiency of the evidence.

Overall, while a question as to the existence of evidence capable of grounding a conviction may be considered a question of law, the question as to whether the trial judge’s conclusion on the facts established by the evidence was correct remains essentially a question of fact. [15] [Citations omitted] [ 35 ] In accordance with s. 686(1)( a )(

i) Cr.C. , the Court of Appeal may also set aside a conviction if it is unreasonable or cannot be supported by the evidence.

[ 36 ] The standard of review applicable to a ground based on the unreasonableness of a verdict was established by the Supreme Court in Yebes [16] and Biniaris [17] and taken up again in Beaudry . [18] A review for unreasonableness must focus on the conclusion rather than the process by which the conclusion was reached. All the evidence adduced at trial must be considered as a whole, rather than as individual pieces taken separately. [ 37 ] In Pardi v.

R ., Morissette J.A. surveyed the parameters of appellate intervention when the ground of appeal is the unreasonableness of the verdict: [ translation ] [28] At this stage, I will summarize what I have already stated to properly frame the questions that must be answered. A verdict that is unreasonable or that cannot be supported by the evidence is reviewable on appeal, and whether it can be characterized as such is a question of law. It will be characterized as unreasonable if the verdict is one that a properly instructed jury acting judicially could not reasonably have returned.

In the case of a verdict rendered by a judge alone, an appellate court may take into account the judge’s stated reasons to decide on the reasonableness of the verdict, which somewhat increases the scope of the review to be performed. Thus, an inference or finding of fact that is essential to the verdict but clearly contradicted by the evidence supporting it or that has been proved to be inconsistent with undisputed evidence that has not been rejected by the judge authorizes an appellate court to quash the underlying verdict as unreasonable.

This stops short, however, of allowing appellate judges to feel "entitled to take a subjective view of the evidence and ask [themselves] if [they are] satisfied that the verdict is safe". A nagging doubt may justify a deeper examination of the evidence to determine whether the verdict is indeed unreasonable according to the standard I have just set out. This holds true for a verdict returned by either a jury or a judge sitting alone but, in the second case, the consideration takes place in light of the reasons given by the judge.

Whatever the case may be, however, where the judge gives detailed reasons for judgment, the appellate court brings nothing new to the assessment of evidence. [19] [Citations omitted] [ 38 ] In Richard , this Court summarized the basic teachings of the Supreme Court judgments: [ translation ] [25] The most recent Supreme Court judgments in R. v. Sinclair , R. v. R.P. and R. v. W.H. teach us the following: 1. The appellate court must first determine whether the verdict is one that a properly instructed jury acting judicially could have rendered in light of the evidence taken as a whole; 2.

The verdict is unreasonable if the trier of fact drew an inference essential to the verdict that is clearly contradicted by the evidence invoked in support of the inference; 3. The verdict is unreasonable if the reasons that support it are so irrational or inconsistent with the evidence that they vitiate the verdict; 4. When determining whether the verdict is unreasonable, great deference must be shown toward the assessment of credibility made at trial; 5.

An appellate court ruling on a guilty verdict returned by a jury must duly take into account the privileged position of the triers of fact who were present at trial and heard the testimony and must not conclude that their verdict is unreasonable solely because it has a reasonable doubt after reviewing the case.

It must instead examine and analyze the evidence and consider through the lens of judicial experience whether judicial fact-finding precludes the conviction. [20] [Citations omitted] Linda Proulx’s Appeal (500-10-005389-133) 1 - The judgment [ 39 ] The judge rejected the defence that the appellant’s service station was not in the Magog market, even though this service station is isolated from the others.

This finding is not challenged before us. [ 40 ] The judge first decided that he did not have evidence of the appellant’s participation in the conspiracy in 2005. [ 41 ] The judge accepted that directly admissible evidence of the appellant’s probable participation in the conspiracy in 2006 could be found in three intercepted telephone conversations between the appellant and Ms. Micheline Cabana or her son (February 22, April 12 and 18, 2006).

The three price increases were confirmed through field observation or cash receipts seized from the appellant’s home. [ 42 ] The judge therefore decided that the “co-conspirators’ exception” applied and that the co-conspirators’ acts in furtherance of the conspiracy were admissible as evidence against the appellant. He accepted three additional telephone conversations between members of the conspiracy – intercepted on May 27 and 28, June 15, 2015, and March 16, 2016 – as overt acts by the co-conspirators.

None of the conversations involved the appellant directly, although the March 16, 2006 conversation took place between her employee and Ms. Cabana. [ 43 ] The judge rejected the defense of non-participation in the cartel and the argument that the appellant set her prices based on her personal observations while driving around, since she has no competitors and her service station is isolated. He also rejected the argument that she had not followed instructions by raising her prices in the morning or the afternoon rather than at closing, as requested.

Ultimately, this is what he concluded about the appellant’s testimony, her defence, and the issue of her participation: [translation] [248] The prosecution’s inferences to explain the May 28, 2005, and June 16, 2005 increases are nothing but conjecture and speculation.Without electronic surveillance or testimony from other members of the cartel showing that Ms. Proulx was contacted, it is not the onlyrational inference available to explain the price hike. [249] However, the fact that Ms. Proulx does not remember the three conversations she had with Ms. Cabana in 2006 does not mean thatthey did not take place.

The Court finds it very difficult to reconcile Ms. Proulx’s testimony with these three conversations. [250] The three conversations are clear. Ms. Cabana told Ms. Proulx about a price hike at closing. Ms. Proulx gave her unequivocalassent, without hesitation or objection ([translation] “Okay? Okay. It’s all good, Okay. Thanks.”).

This is not, as the defence contends, amere unblameworthy [translation] “conveyance of information”. [251] The increase took place at closing as planned, in other words, the prices were changed for the following day’s opening, as we haveseen. [252] A single act committed in furtherance of the conspiracy is sufficient to incur criminal liability. In R. v. Crown Zellerbach Canada Ltd,[92] Manson J. of the Supreme Court of British Columbia wrote: [...] [253] The participation of the co-conspirators need not be equal. It may vary and yet remain criminal. In R. v.

Root,[93] the Court ofAppeal for Ontario, per Watt J.A., wrote: [...] [254] The defence submits that Linda Proulx was not complying with the cartel by increasing her prices in the morning or even in theafternoon. She was in fact damaging to the cartel, as some of the co-conspirators complained in 2005. On this point, Batshaw J. of the Court of Queen’s Bench is worth quoting:[94] [...] [255] There was an agreement between Ms. Cabana and Linda Proulx on a concerted price hike in the Magog market on at least four occasions.[95] The price increases were not fortuitous or the mere result of Ms. Proulx’s observations.

(92) R. v. Crown Zellerbach Canada Ltd., [1955] B.C.J. 1.

(93) R. v. Root, 2008 ONCA 869.

(94) Regina v. Abitibi Power & Paper Company et al., (QC CQ), [1960] Q.J. No. 7.

(95) The three intercepted Cabana-Proulx conversations and that of March 16, 2006, when Ms. Cabana left the message with Ms.Proulx’s employee. [44] The judge accepted the prosecution’s argument that in 2006, the appellant fell into step as a result of being pressured bymembers of the cartel. He found that the co-conspirators’ acts could lead to only one reasonable inference: [translation] [256] Furthermore, the co-conspirators’ acts lead to only one reasonable inference: while Ms.

Proulx may have been hesitant in 2005, inthe spring of 2006 she was a willing participant. [257] The actus reus has been proved beyond a reasonable doubt. [258] Ms. Proulx had knowledge of the general nature of the conspiracy and its terms: a concerted price increase in Magog. [259] Ms. Cabana had informed her of the importance of following the increase to avoid [translation] “having the whole region tank”.Ms. Proulx was aware that the scope of the conspiracy covered the whole region. [260] Ms. Proulx intended to participate in the conspiracy and joined in knowingly.

She followed through on the terms of theagreement. [261] That is the subjective mens rea. [262] The objective mens rea, for its part, is constituted by the agreement as to price. According to an objective view of the evidenceadduced, the accused intended to unduly lessen competition. Indeed, it is logical to assume that a reasonable businesswoman who isfamiliar with her business knew or should have known that such an agreement would be likely to unduly lessen competition. [263] Linda Proulx is convicted as charged. [Citations omitted]

2 - Linda Proulx’s Submissions [ 45 ] The first series of challenges, of which there are many, concerns the trial judge’s assessment of the evidence: 1) Contrary to R. v. Griffin , [21] the judge erroneously assessed the rules governing circumstantial evidence whereby evidence must be not only consistent with the finding of guilt but also inconsistent with any other logical inference. There were two logical explanations for the price increases: criminal agreement and conscious parallelism; 2) Contrary to R. v.

Sheppard , the judge rejected the appellant’s explanations without giving reasons for his judgment; [22] 3) The judge erred in deciding that the intercepted conversations showed intent to enter into an unlawful agreement, failing to take into consideration evidence to the contrary.

The judge erred by (1) not finding that the appellant did not increase prices when the cartel asked, (2) erroneously finding that the cartel tolerated increases until the next morning, and (3) failing to take into account that the appellant had no interest in being a member of the cartel (absence of motive within the meaning of Lewis v. R. [23] ) given her geographic location. [ 46 ] The second series of challenges concerns the co-conspirators’ exception.

Here again the appellant’s argument can be broken down as follows: 1) The judge could not use the co-conspirators’ statements from the electronic surveillance in 2005 (conversations between Bourassa and Cabana) to establish the appellant’s knowledge of the scope of the conspiracy because, according to Loewen [24] and Containers Materials , [25] the acts prior to an accused’s participation in a conspiracy cannot be used ; 2) The judge did not analyze the necessity of admitting these statements or their reliability, even though the two witnesses were available to testify; 3) The judge also erred in applying the second step of the co-conspirators’ exception developed in Carter by relying exclusively on a portion of the evidence that was directly admissible, rather than the evidence as a whole, to determine the appellant’s probable participation. [26] 3 - Analysis [ 47 ] In October 2005, the appellant became the owner of her father’s service station.

She had been a manager there since the 1980s. The service station is operated independently under the Pétro-Canada banner, which sells it petroleum products. The appellant sets the pump price of gas herself. The geographical location of the station near Highway 10 led her to develop the restaurant aspect of the business. Her clientele is 75% to 80% highway drivers, tourists, truck drivers, and buses.

There are no homes in this area and, at the relevant time, there were no other service stations. [ 48 ] The appellant testified that she always set the price of gas by observing the prices on her drive from Deauville to Magog and then towards Sherbrooke, where she drove her children in the morning. She also received a great deal of information from people who stopped at her service station.

She also received information from Viper, Pétro-Canada’s automated call system that informs service stations about price increases in the various regions of Quebec. [ 49 ] Because the service station is out of the way near Highway 10, her competitors and the consumers who frequent other establishments do not see the price she posts. Regarding the 11 events reported, the investigator observed that the appellant never changed her prices at closing but did so early in the morning or before noon. He asserted that retailers who postpone their price increases can instigate price wars.

This witness also explained conscious parallelism, where one retailer copies its competitor’s prices without being part of a conspiracy to lessen competition. This is precisely the appellant’s defence. [ 50 ] As we have seen, the respondent had to prove the appellant’s knowledge of the general nature of the conspiracy and her intent to participate. [27] [ 51 ] The burden on the prosecution to prove the requisite culpable intent is the following: - Prove that the accused intended to enter into the agreement and was aware of its terms.

Once this is shown, it is reasonable to infer that the accused intended to carry out the terms of the agreement, subject to evidence to the contrary. This is the subjective element; - Prove that the accused intended to unduly lessen competition. To do so, it is logical to assume that a reasonable businessman or woman familiar with their business knows or should know that such an agreement is likely to unduly lessen competition. This is the objective element. [ 52 ] In my view, it is necessary to begin the analysis with the most central issue: did the judge err in applying the co-conspirators’ exception?

First Challenge – At the second stage, the judge failed to consider all the directly admissible evidence, including the appellant’s testimony, before applying the co-conspirators’ exception. [ 53 ] According to the appellant, the judge had a duty to weigh all the directly admissible evidence to establish the probability of her participation, as opposed to a single element that was prima facie unfavourable to her. She argues that it is reasonable to believe that his conclusion would have been different had he done so. [ 54 ] On this point, the appellant is partially right.

When examining the evidence directly admissible against an accused in a conspiracy case, before finding that the accused’s participation in the conspiracy was probable, the judge must weigh all the direct evidence, not just the elements unfavourable to the accused while setting aside those that weigh in his or her favour. Considering only a

portion of the direct evidence can be unduly prejudicial to an accused. [28] [ 55 ] In Carter , McIntyre J. indicated that the question of participation in the conspiracy must be decided “on the basis of evidence directly admissible against him”, for each of the accused, before permitting the application of the exception for the purpose of determining the larger issue of guilt or innocence. [29] A judge may decide as early as the second stage that he or she believes the accused and enter an acquittal, failing other evidence.

In this case, however, the three intercepted conversations were enough to allow the judge to find, on a balance of probabilities, that there was direct evidence of the appellant’s participation in the conspiracy.

Second Challenge – The judge should have applied the usual criteria of reliability and necessity to the statements before admitting them into evidence, and he failed to assess the ultimate reliability of these statements. [ 56 ] The appellant urges us to follow Simpson , [30] rendered by the Court of Appeal for Ontario, in which it was decided that the fact that the statement was made by a compellable person who is available to testify constitutes one of those “rare cases” described in Mapara where the co-conspirators’ exception should not be applied. [ 57 ] The respondent urges us to follow Oliynyk [31] (also known as R. v.

Lepage ), rendered by the Court of Appeal for British Columbia and not to depart from the principles accepted by the Chief Justice in Mapara , [32] according to which the conditions in Carter [33] provide the guarantees of necessity and reliability allowing co-conspirators’ statements to be admitted into evidence.

The same would be true if those involved in the intercepted conversations were compellable because they were not charged and were available to testify. [ 58 ] In Oliynyk , Hall J.A. was of the view that electronic surveillance is certainly the best evidence to establish a conspiracy and that the statements gathered this way are the best evidence. [ 59 ] In Simpson , a co-conspirator who was not charged had made statements to a double agent which the prosecution wished to adduce into evidence through the sole testimony of the double agent. On the basis of R. v.

Starr , [34] LaForme J.A. noted that exceptions to the hearsay rule exist because of their inherent components of necessity and reliability. A hearsay exception that does not have such components is a “rare case” in which the exception does not apply.

He recalled that Mapara outlined the three reasons a statement may be admitted: (1) the non-compellability of a co-accused; (2) the undesirability of trying co-conspirators separately, and (3) the evidentiary value of the contemporaneous statements made in furtherance of the conspiracy. [ 60 ] LaForme J.A. found, however, that the statement made to a double agent and later recorded was not as reliable as a spontaneous statement made between two conspirators.

He found that where a co- conspirator was available to testify and there was no evidence that he would be uncooperative, this constituted one of the “rare cases” to which the Chief Justice referred in Mapara . [ 61 ] Therefore, there is no single answer as to whether the compellability of a co-conspirator constitutes a “rare case” where the co- conspirators exception applies.

Each situation must be considered on a case-by-case basis. [ 62 ] Here, the judge admitted the evidence of telephone conversations intercepted in 2005, including several between Micheline Cabana and Pierre Bourassa, the latter having testified at trial without being questioned on the content of the conversations. The fact remains, however, that he was available to be cross-examined on these statements. During examination-in-chief, Bourassa admitted that he had no contact with the appellant and it was only on the morning of the trial that he found out she owned the Cherry River service station.

He stated that he did not know what she did with prices. [ 63 ] As for Micheline Cabana, she did not testify, but she was compellable. [ 64 ] Under these circumstances, I do not see any error in admitting the electronic surveillance of the conversations between these two persons into evidence. They are certainly spontaneous statements, made contemporaneously with the conspiracy. [ 65 ] However, that the electronic surveillance evidence is admissible does not mean that the trier of fact is bound to take all that it reveals as proven.

As we have seen, its ultimate reliability and probative value must be assessed. [ 66 ] The appellant is right to state that the judge admitted into evidence all of the conversations intercepted on May 28, 30, 31, and June 1, 2005, without questioning their ultimate reliability and probative value in light of the evidence as a whole: [ translation ] [195] On May 28, 2005, Pierre Bourassa spoke to Micheline Cabana on the telephone. The latter explained to Pierre Bourassa that Linda Proulx could not be trusted: [ translation ] “sometimes she says she’ll increase her price but she doesn’t”.

But, that day, Linda Proulx had indeed increased her price to reflect the cartel price, whereas Ultramar did not, and so Pierre Bourassa gave the order to lower the price to 91.4¢ per litre. Ms. Cabana added, [ translation ] “It’s that, you know, Linda and I have never gotten along”. Ms. Cabana wanted to contact other retailers close to Linda Proulx (Ms. Durand and Sylvie) so that they would call her. [196] On May 30, 2005, Pierre Bourassa spoke with Micheline Cabana on the telephone. That was the Monday following the abandoned increase on Friday, May 27, 2005.

Pierre Bourassa wanted to try raising the price to 95.4¢ per litre and to find a way to convey that information to Ultramar. He claims that for this new increase to be successful, Linda Proulx had to follow. Ms. Cabana undertook to call Sylvie Fréchette in Deauville so she would pass the message along to Linda Proulx. [197] On May 31, 2005, in a telephone conversation between Pierre Bourassa and Denis Boutin, an Olco retailer in Magog, Mr. Bourassa explained that it was the late Mr.

Cabana who had taken care of Linda Proulx and who [ translation ] “coordinated his gang”. [198] On June 1, 2005, at 7:07 a.m., Pierre Bourassa spoke with Céline Bonin from Couche-Tard about the latest attempted increase, which had been abandoned because Ultramar had failed to follow suit. He stated that Linda Proulx took a long time to raise her prices. Pierre Bourassa explained that as soon as those two (Linda Proulx and another) were informed, [ translation ] “normally it moved forward

and there weren’t any problems”. Bourassa confirmed that he could arrange to make sure they increased but that if they (Ultramar) put it off for over an hour, he would back off. [199] At 7:24 a.m., Bourassa spoke with Michel Dubreuil, a cartel messenger. Mr. Bourassa explained that there were two non- cooperators in Magog, an Esso station downtown and “Cherry River” (Linda Proulx). He said that he had the contacts to [ translation ] “make those two increase”.

The previous Sunday, [ translation ] “every one had gone up” except Ultramar. [200] That same day, at 7:40 a.m., Pierre Bourassa spoke with Micheline Cabana on the telephone. Ms. Cabana complained that the previous evening, Linda Proulx had failed to raise her price to the agreed 93.4¢ per litre. Ms. Cabana explained to Pierre Bourassa that she had asked Sylvie Fréchette to call her, but that Linda Proulx had not called Sylvie Fréchette back.

Sylvie Fréchette apparently called Linda Proulx again but the cartel did not verify whether the price was changed. [201] Pierre Bourassa announced a price increase to 96.4¢ per litre at closing. If Ultramar failed to move by the following day at 9 a.m., he would bring his price back down to 91.4¢ per litre and, to teach Ultramar a lesson, would not attempt another price increase for a week. Pierre Bourassa insisted that Linda Proulx understand the importance of changing her prices at closing because she could [ translation ] “tank” the whole region. Ms.

Cabana said that she had explained exactly that to Linda Proulx on the (previous) Saturday, and that Sylvie Fréchette had spoken with her again the night before. Ms. Cabana considered calling Linda Proulx’s father because he was apparently the owner of the service station. Ms. Cabana promised to do her best to make sure that Linda Proulx fell in line with the cartel. [202] That same day, at 7:48 a.m., Pierre Bourassa called Denis Boutin, the Olco retailer in Magog. He informed him of an increase in the price of gas to 96.4¢ per litre at closing.

Pierre Bourassa indicated that he had identified Linda Proulx as one of the unwilling participants, as well as an Esso retailer in downtown Magog. He claimed that he made the phone calls required for the increase to be followed. [203] On June 7, 2005, at 8:30 a.m., Pierre Bourassa spoke with Micheline Cabana on the telephone. He planned to increase the price to 98.4¢ per litre at closing in Magog. He discussed the previously abandoned increases. He said that Linda Proulx had caused one of them.

Micheline Cabana had supposedly called the Pétro-Canada supervisor, who apparently [ translation ] “had taken care of Linda”. Ms. Cabana then called Linda Proulx. [204] All these recriminations were recorded in 2005. No recriminations were recorded in 2006. It is the prosecution’s submission that Linda Proulx was reluctant in 2005 but joined the ranks in 2006 following pressure exercised by the cartel. The three conversations intercepted in 2006 in which Ms.

Proulx agreed to increase the price at closing without hesitation or objection show this to be the case. [ 67 ] However, the judge failed to consider the ultimate reliability of the statements, and he should have done so for some of them. For example, the reliability of Ms. Cabana’s statement that she would contact a third party who would speak to the appellant should have been assessed at the final step. The statement is hypothetical, addresses future actions, and contains double hearsay.

In light of all the evidence and the appellant’s testimony, without further examination, this statement could not be used to assert that the appellant [ translation ] “joined the ranks” in 2006. Third Challenge – The judge admitted into evidence overt acts of the co-conspirators that predated her participation in the conspiracy. [ 68 ] The evidence of acts and statements of the co-conspirators in furtherance of the conspiracy that the judge used against the appellant consists of electronic surveillance from 2005 and one conversation intercepted on March 16, 2006, between Ms.

Cabana and one of the appellant’s employees. [ 69 ] However, while the co-conspirators’ statements from 2005 are admissible to establish the origin, nature, object, and general scope of the conspiracy [35] involving the most important members of the gas cartel, they cannot be used against the appellant to establish her participation in the conspiracy in 2006. [36] [ 70 ] The respondent concedes that the judge erred in relying on the co-conspirators’ statements from a time when the appellant was not a member of the conspiracy. [ 71 ] The judge used this evidence to establish her knowledge of the general nature of the conspiracy and to support the notion that, while she may have been [ translation ] “hesitant in 2005, in the spring of 2006 she was a willing participant”. [ 72 ] The judge’s error is not harmless.

It appears from his reasons that he relied on inadmissible evidence, i.e., the fact that [ translation ] “Ms. Cabana had explained to her the importance of participating in the increase so that the whole region wouldn’t tank” [37] to establish an essential element of the appellant’s guilt, specifically, [ translation ] “knowledge that the scope of the conspiracy was regional”. [38] This inadmissible evidence is what the judge used to find that the appellant was aware of the scope of the conspiracy and intended to join it.

And indeed, this is the very heart of the appellant’s defence. *** [ 73 ] That said, did these errors of law cause a substantial wrong or a miscarriage of justice within the meaning of s. 686(1)( b )(iii) Cr.C. ? [ 74 ] It is up to the respondent to show that the verdict would necessarily have been the same had the error not been committed. [39] This demonstration is prerequisite to the application of s. 686(1)( b )(iii) Cr.C. [40] and is necessary insofar as an appellate court is not present when the trial unfolds: The high standard of an invariable or inevitable conviction is understandable, given the difficult task for an appellate court of evaluating the strength of the Crown’s case retroactively, without the benefit of hearing the witnesses’ testimony and experiencing the trial as it

unfolded ( Trochym , at para. 82). It is thus necessary to afford any possible measure of doubt concerning the strength of the Crown’s case to the benefit of the accused person. [41] [ 75 ] In Khan , Arbour J. summarized the case law on the application of the curative proviso: The case law is replete with examples of situations where either the triviality of the error itself, or the lack of prejudice caused by a more serious error of law, justified the application of the curative proviso In all those cases, the appellate courts were convinced that the error could have had no effect on the verdict.

Because of the nature of the errors and of the issues with respect to which they were made, it was possible to trace their effect on the verdict and ensure that they made no difference. Generally, the errors concerned evidence that was insignificant to the determination of guilt or innocence or benefited the accused by imposing a more onerous standard on the Crown. Errors in the charge to the jury respecting a very minor aspect of the case that could not have had any effect on the outcome or concerning issues that the jury was otherwise necessarily aware of were also cured by the application of the proviso.

Similarly, in some cases the errors concerned preliminary findings that would nevertheless, as a matter of law, inevitably have resulted in the same finding made by the trial judge. [Citations omitted] [ 76 ] The threshold for the curative proviso to apply is evidence so overwhelming or powerful [42] that the trier of fact would have inevitably convicted the accused. [43] The review must therefore lead to the finding that there is no realistic possibility that a new trial would produce a different verdict. [44] [ 77 ] With the greatest respect for the trial judge, this leads me to another shortcoming in his judgment.

The appellant rightly maintains that the judge did not rule on the credibility that should be assigned to her testimony or explain why the defences submitted did not raise a reasonable doubt. Saying that her testimony was [ translation ] “difficult to reconcile” with three telephone conversations does not constitute a weighing of the credibility of the appellant’s testimony in the general context of the evidence. [ 78 ] It is true that the evidence of her intention to join the conspiracy and her knowledge of the scope of the conspiracy are basically circumstantial.

The appellant is wrong, however, when she claims that the judge must be convinced that the facts are inconsistent with any other logical conclusion, as stated in Hodge ’s Case , [45] a judgment rendered in 1838. This position has since been relaxed, and the Supreme Court of Canada very recently reviewed the problematic aspects of the case law flowing from Hodge’s Case . [ 79 ] The recent judgment in R. v.

Villaroman [46] highlights the well-founded fear that a trier of fact may draw hasty conclusions in cases based on circumstantial evidence, the danger being that the trier of fact may “fill in the blanks”. [47] [ 80 ] I note the following teachings from Villaroman , which I repeat here almost word for word: ➢ The judge must consider the range of reasonable inferences that can be drawn from the evidence.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt (para. 35); ➢ Reasonable doubt may be based on the evidence or the absence of evidence; thus, a gap in the evidence may result in inferences other than guilt, but those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (para. 36); ➢ The trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt; however, the Crown need not negative every conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused; other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation (para. 37); ➢ The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty (para. 38). [ 81 ] For the judge to find the appellant guilty, he therefore had to reach the conclusion, after analyzing all the evidence, notably including the appellant’s testimony, that the evidence left no room for reasonable doubt. [ 82 ] It is not the task of appellate judges to retry a case or to reassess the evidence adduced at trial.

That said, there is no “overwhelming” or “powerful” evidence of the appellant’s knowledge of the nature of the conspiracy or her intention to follow through with the terms of the agreement.

The judge found that [ translation ] “she followed through with the terms of the agreement” even though the evidence could indicate the opposite, as the investigator acknowledged that the appellant [ translation ] “did not change her prices quickly”. [48] [ 83 ] Moreover, the judge’s finding that there was some leeway as to when the price was increased appears to be inconsistent with Pierre Bourassa’s testimony or should at the very least be qualified as a result of this testimony. [ 84 ] The analogy with R. v. Abitibi Power , [49] to which the judge refers, appears inadequate in that Ms.

Proulx’s failure to increase her price at closing does not necessarily show that the appellant violated the terms of the agreement, but could instead be consistent with her defence that she was not a member of the conspiracy. Unlike in Abitibi , the facts alleged against the appellant do not necessarily show that she violated an existing agreement.

And, in fact, the judge addressed this argument only superficially before setting it aside without further consideration. [ 85 ] Neither did the judge elaborate with respect to the appellant’s lack of interest in joining the conspiracy given the location of the service station. The fact that she is part of the Magog market does not necessarily decide the issue.

[ 86 ] The judge rightly found that what matters in a conspiracy case is not what happens after the agreement, but the agreement itself. [50] What happens subsequently may, however, be useful in establishing membership in an agreement. [ 87 ] I do not find overwhelming evidence in this case that would allow for the application of the curative proviso. [ 88 ] It is also surprising that the judge convicted the appellant as charged for the period between May 27, 2005 and May 29, 2006, when he asserted that she did not participate in the conspiracy in 2005. [ 89 ] In file 500-10-005389-133, I would therefore allow the application for leave to file an additional statement, allow the appeal, and order a new trial.

Michel Lagrandeur’s Appeal (500-10-005401-136) [ 90 ] The appellant has owned a service station in downtown Magog since 1991. He operates under a Shell banner and determines the sale price of gas himself; Shell sells him gas at a price determined according to its own sales price. He has two double pumps and offers pump service. He operates a two-door auto-repair garage. [ 91 ] At the relevant time, in 2005 and 2006, when the time came to change gas prices, he used a suction cup or climbed the pole and changed the pump price manually.

He was the only person to change the prices; none of his employees were authorized to do so, except when he was on vacation. In that case, an attendant was authorized to change the price and his instructions were to do so according to the price set by the garage across the street, the Pétro-Canada operated by the Cabana family. [ 92 ] During the day, the appellant showed up at 6:00 a.m. and did auto repair work, accompanied between 8:00 a.m. and 5:00 p.m. by an employee who also pumped gas. At 5:00 p.m., a pump attendant arrived and remained until closing, around 9:00 or 9:30 p.m.

On weekends, two pump attendants were present, one in the morning, the other in the evening. [ 93 ] The appellant testified that at all times, he was the one to set his gas price based on that of his competitor’s – the Pétro-Canada service station across the street. He added that he did not want to sell at a price lower than the other service station because it would attract customers to the detriment of his auto repair service, which was his priority. This would require two pump attendants to be present.

The appellant states that auto repair is more profitable than selling gas. [ 94 ] The appellant testified that he was surprised by the call he received on February 22, 2006, because Ms. Cabana had never called him before. The call did not lead him to change his way of doing things.

He admits that he received subsequent telephone calls on March 16 and on April 12 and 18, 2006, informing him of various gas price increases. [ 95 ] He added that, with the exception of the Cabanas, he does not know the other people listed in the indictment. 1 - The judgment [ 96 ] The judge accepted that the evidence of Michel Lagrandeur’s probable participation in the conspiracy was found in four intercepted telephone conversations between Micheline Cabana or her son Bruno and Mr. Lagrandeur (February 22, March 16, April 12 and 18, 2006).

He therefore decided that the co-conspirators’ exception applied and, consequently, accepted in evidence the intercepted conversations between Bourassa and Micheline Cabana. On May 27, 2005, during a conversation between Bourassa and Bruno Cabana, the latter said that he would take care of calling Lagrandeur. On May 28, 2005, Bourassa and Ms. Cabana discussed the communications strategy, and Ms. Cabana said that she would talk to the [ translation ] “Shell guy” to let him know that from now on she would no longer call him and that he would see the prices she posted. On May 30, Ms.

Cabana told Bourassa that she would take care of the [ translation ] “Shell across the street”. On June 1, 2005, she told him that she would call him. On June 7, 2005, Ms.

Cabana assured Bourassa that there would be no problems with the [ translation ] “the Shell guy”. [ 97 ] The judge also accepted that Lagrandeur telephoned Dépanneur Cabana on March 31, 2006 and asked, [ translation ] “Do you know if we’ll be increasing the gas price tonight?” A woman answered, [ translation ] “I haven’t gotten the call yet.” The judge found this conversation showed his intention to fix his price based on his competitor’s and that he knew that a call from a third party would announce the price increase. [ 98 ] The judge did not believe the appellant on three points: first, when he claimed that the sale of gas was a marginal activity, since he had three employees assigned to this activity, which brought in $10,000 gross per month.

Neither did he believe him when he claimed not to know Micheline Cabana and not to have received any calls from her prior to February 2006. [ 99 ] The judge found that the actus reus was proved beyond a reasonable doubt. As for the subjective mens rea , he found that it had also been proved by the appellant’s call to Cabana on March 31, 2006: [ translation ] “He clearly showed his desire to participate in price- fixing with his competitor. This is far from conscious parallelism or feeling around for a price”.

As for the objective mens rea , and in the presence of an agreement on the price, the judge found that the accused intended to unduly lessen competition, as it was logical to assume that a businessman who knows his business knows or should have known that such an agreement was likely to unduly lessen competition. 2 - Michel Lagrandeur’s Submissions [ 100 ] The appellant’s challenges concern primarily the trial judge’s assessment of the evidence.

They are many and they overlap: 1) The judge did not apply the rule regarding the analysis of circumstantial evidence whereby the evidence as a whole must be not only consistent with the appellant’s participation in the conspiracy, but also entirely inconsistent with any other logical conclusion; 2) The judge erred in law in failing to take all of the evidence into consideration;

3) The judge erred in law in assessing the appellant’s credibility; 4) The judge erred in law in admitting into evidence facts that were illegally proved and in drawing conclusions from those facts. 3 - Analysis [ 101 ] The first three challenges formulated by the appellant overlap. The appellant maintains that if the judge had properly assessed his credibility and taken all the evidence into account, his defence should have raised a reasonable doubt in the judge’s mind. The respondent argues that these challenges are similar to a ground based on s. 686(1)( a )(

i) Cr.C. , which allows the Court of Appeal to set aside an unreasonable guilty verdict. [ 102 ] The appellant also argues that the judge committed two errors of law: first by admitting into evidence facts that were illegally proved and second by failing to give sufficient reasons for his judgment. [ 103 ] The appellant's defence is based on the fact that he did not raise his gas price according to the terms agreed on with others but according to the price set by the Pétro-Canada service station across the street.

In a way, he did not participate in any agreement with his neighbour or any other members of the broad conspiracy. The purpose of the telephone calls that allegedly started on February 22, 2006, was only to give him the information; they did not change his conduct, which had been the same for years. *** [ 104 ] The judge began his analysis by considering the appellant’s defence and testimony.

Considering the evidence as a whole, he found that that the testimony lacked credibility in three respects, and he gave a clear explanation for his conclusion. [ 105 ] The appellant asserts that there was no agreement whatsoever with anybody: [ translation ] Q. Have you ever had conversations with anybody at all to have (inaudible) increase or change your prices? A. No, never. Q. Did you agree with anybody at all to change or increase your prices? A.

No. [51] [ 106 ] To support his defence, the appellant explained the reasons that led him to follow his competitor’s prices instead of posting a lower price: he wanted to avoid getting more customers at the pump because he did not want to invest any more human resources in this task, preferring to focus on his auto repair service. In itself, this is not a defence because there are many reasons a person might choose to join a conspiracy to fix gas prices.

The fact that he wanted to avoid more customers at the pump is equally consistent with his participation in the conspiracy and the defence of conscious parallelism. That being said, because the appellant wanted to put this forward, the judge was right to assess it. [ 107 ] This is how the appellant justified wanting to follow his neighbour’s pricing: [ translation ] Q. So, when you refer to the competition, who is the competition in your books? A. It’s the station across the street from me. Q. Your competitor is Micheline Cabana, no one else? A. That’s right. Q.

Have you ever gone to see the prices elsewhere in Magog before increasing your prices? A. Mostly no. Q. Why do you raise your prices? A. Well, the main reason is so that we can be at exactly the same price, it’s mostly what the profit margin dictates and to avoid that, it’s because if Ms. Cabana hikes and I don’t, well, all the clients will come to my place, and then that hurts my auto repair service. THE COURT: Q. Why? A.

Because we need two (2) of us to go pump gas. [ 108 ] His justification has two aspects, the first being the profit margin and the second the fact that it is detrimental to his auto repair service, which we recall operates on weekdays. It was with respect to the first aspect, the profit margin, that the judge did not believe him. It is important to note that it was revealed in cross-examination that he made a profit by selling gas. This is how the judge related the evidence:

[ translation ] [305] In cross-examination, Lagrandeur was asked about his allegation that the sale of gas was more or less profitable. [306] The numbers show instead that it represents non-negligible additional income. Indeed, Mr. Cabana still has one attendant pumping gas and three pump attendants who work nights and weekends. Exhibit P-3 makes it possible to extrapolate gross profits of $120,000/year from regular gasoline sales. [307] If we compare profits, profit margins, and volumes sold on days when prices were increased, i.e.

February 22 and 23, 2006, April 12 and13, and April 18, and 19, 2006, a decrease in volume does not preclude an increase in profit. [ 109 ] The judge therefore had reasons not to believe the appellant that the sale of gas was a marginal activity and to find that the evidence did not support his testimony on this point. [ 110 ] The appellant also submits that the judge did not assess his credibility correctly when he claimed not to know his neighbour Ms. Cabana and to have been surprised by her telephone call on February 22, 2006.

The appellant intended to show that the sole purpose of the telephone calls made by his neighbour was to convey information about gas prices. [ 111 ] But listening to the intercepted telephone calls convinced the judge that the appellant knew Ms. Cabana and that the calls did not start in February 2006. Indeed, the appellant indicated his agreement during these telephone conversations.

Moreover, the intercepted conversations between the co-conspirators, which the judge could properly consider, reveal calls that took place before February 22, 2006. [ 112 ] The fact that the appellant himself initiated a telephone conversation with his competitor, at 3:38 p.m. on Friday, March 31, 2006, clearly and directly shows his intent to enter into a price-fixing agreement. It is worth reproducing the content of this intercepted conversation: [ translation ] UF: Dépanneur Cabana, hello. Mr. Lagrandeur: Yes, this is Michel Lagrandeur. UF: Yes. Mr.

LAGRANDEUR: Do you know if we’ll be increasing the gas price tonight? UF: Um, I haven’t gotten the, um, call yet. Mr. LAGRANDEUR: The call. UF: No. Mr. LAGRANDEUR: Okay. UF: Okay. Mr. Lagrandeur: Okay, thanks. UF: Bye. (“UF” means an unidentified female). [52] [ 113 ] The call shows that he was looking for specific information, that is, whether the gas price was going to increase. [ 114 ] His testimony was very clear about two things: (1) he knew that there was a pattern: Montreal increased, Sherbrooke increased, and then Magog increased and (2) he knew that his neighbour was waiting for a call: [ translation] Q.

And let’s get back to the conversations of March 6 and 31, 2006, Your Honour, which are on page 652. That one, as you can see, is the opposite of what usually happened. You made the call? A. Yes. Q. How can you explain that? A. Well, it was on a Friday at 3:38 p.m. Q. One moment now, don’t go too fast. A. And me, on Fridays, the repair shop, well, I often close up at four o’clock (4:00), so I called Ms. Cabana to find out if there was a price increase because the pattern was that Montreal would increase, then Sherbrooke would go up, and then Magog went up. THE COURT:

Q. Just a second. So you have told me that you close up the repair shop at four o’clock (4:00)? A. At four o’clock (4:00). Q. But do you leave the service station? A. Yes. Q. So you are telling me that there was a pattern, what is that pattern Mr. Lagrandeur? A. Well, on the news they were talking about gas prices going up in Montreal, then in Sherbrooke gas was going up and then Magog followed suit. Q. Yes? A. And since Montreal had gone up, Sherbrooke had gone up, so Magog was next, which is why I called to see if she knew whether anybody was going up. Q. So you called to? A.

To check if they had heard of anybody increasing their gas prices. MTRE JEAN BEAUDRY: Q. But why did you want to check that? A. Well, because when I leave there’s no one to make the price change and if it increases and my pump attendant hasn’t warned me, then on the weekend, it’s gonna be a problem, you know. THE COURT: Q. Why is it a problem? A. Well, then they have to call me so that I can come and change the prices.

And sometimes on weekends, well, I’m not around. [53] [Sic] [ 115 ] This testimony undoubtedly shows that he knew that there was a general agreement to fix prices and the telephone call he made shows that he wanted to be a part of it. The reasons he acted as he did that Friday evening when he wanted to leave for the weekend are merely anecdotal.

The judge therefore did not err in stating that this call showed his desire to participate in price fixing with his competitor. [ 116 ] The argument that the judge failed to consider the appellant’s testimony about the fact that he never had conversations with the persons listed in the indictment, whom he did not know, is also without merit. [ 117 ] A conspirator need not know the identity of each co-conspirator, provided that the members agree to pursue a common object. The remarks of Watt J. on this subject in R. v. Root are relevant: [68] It is trite that the roles of individual conspirators may differ widely.

The participants need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it. [54] [ 118 ] Nor is it necessary to establish that the accused had in-depth knowledge of the agreement; knowledge of its general nature is enough: For example, it is not necessary that a person have known of the conspiracy before the bidding so long as he learned of it before the conspiracy was completely carried out.

A conspirator can be guilty without knowing all the details of the conspiracy, or without participating in all the agreement, so long as he knows the object and agrees to participate in part. For example if the object was to fix the bid on three jobs and he had knowledge of the object and agreed to participate in part then he would be guilty. [55] [ 119 ] The evidence as a whole allowed the judge to issue a guilty verdict. [ 120 ] Finally, in neither his factum nor his oral arguments does the appellant develop his argument that the judge considered the co- conspirators’ statements without being entitled to do so.

On this point, we note that the judge had direct probative evidence of the appellant’s participation in the conspiracy and he could therefore consider co-conspirators’ statements pursuant to the rule in Carter and Mapara . [ 121 ] I would therefore dismiss the appeal in case 500-10-005401-136. DOMINIQUE BÉLANGER, J.A.

[19] Pardi c. R. , 2014 QCCA 320 at para. 28 .