2014 QCCA 1456, 2014 QCCA 1456

R. c. Couche-Tard inc. 2014 QCCA 1456 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005261-126 (450-36-000854-118; 450-73-000727-101) DATE : July 31, 2014 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. PIERRE J. DALPHOND, J.A. MANON SAVARD, J.A. HER MAJESTY THE QUEEN APPELLANT (Prosecutrix) v. COUCHE-TARD INC.

RESPONDENT (Accused) JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Saint-François (the Honourable Yves Tardif), rendered on August 10, 2012, which granted the respondent's amended motion to stay proceedings in case number 450-730-000727-101. [ 2 ] For the reasons of Savard, J.A., with which Duval Hesler, C.J.Q. and Dalphond, J.A. agree, THE COURT : [ 3 ] DISMISSES the appeal. NICOLE DUVAL HESLER, C.J.Q. PIERRE J. DALPHOND, J.A. MANON SAVARD, J.A.

Mtre Denis Pilon Mtre Stéphane Hould Director of Public Prosecutions of Canada For the appellant Mtre Stéphane Eljarrat Mtre Jean-Philippe Groleau Davies Ward Phillips &Vineberg, L.L.P. For the respondent Date of hearing: February 18, 2014

REASONS OF SAVARD, J.A. [ 4 ] The Crown repudiated a plea agreement with Alimentation Couche-Tard Inc. (Alimentation) after the latter had disclosed its intended defences to the charges against it, as provided in that agreement. Alimentation had been charged with being a central figure in a gas-pump price-fixing scheme in four cities in Quebec, contrary to

section 45 of the Competition Act . [1] The Crown subsequently withdrew the charges against Alimentation but filed identical charges against the respondent, Couche-Tard Inc., a related company, which had been granted immunity from prosecution under the plea agreement and whose defences are essentially the same as Alimentation's. According to the trial judge, the repudiation constitutes an abuse of process infringing on the fairness of the respondent's trial.

He deemed that a stay of proceedings was the only measure that could remedy such prejudice. [2] [ 5 ] The Crown appeals, arguing that the trial judge erred in presuming that prejudice arose from the mere disclosure of the defences and in imposing on the Crown the burden of proving that it had gained no tactical advantage as a result of such disclosure.

It adds that the trial judge also erred in finding that no remedy could reasonably remedy the prejudice caused by such an abuse of process, while the continuation of proceedings was justified by the public interest. [ 6 ] For the following reasons, I would dismiss this appeal. In my view, the trial judge was correct to presume that the disclosure of the defences would render the trial, unfair and the Crown has not persuaded me that the trial judge’s conclusion that it has failed to reverse the presumption constitutes a reversible error.

Although a stay of proceedings is a draconian remedy, it is the appropriate measure in the circumstances at hand. Background [ 7 ] In June of 2008, after a four-year investigation led by the Competition Bureau, the Crown filed charges against Alimentation. It alleged that, between April 1, 2005, and May 29, 2006, Alimentation conspired to fix the price of gasoline at the pump in the Sherbrooke, Magog, Victoriaville and Thetford Mines markets, contrary to paragraph 45(1) (

c) of the Competition Act . [3] Charges to the same effect were also filed against other natural and legal persons, including Richard Bédard and Céline Bonin, who, according to the Crown, are Alimentation employees. [ 8 ] On January 14, 2010, after two months of discussions, the Crown, represented by counsel for the Public Prosecution Service of Canada, regional Quebec bureau, and Alimentation, represented by attorneys who specialize in competition law, agreed on an overall settlement of the charges against it, [4] whereby: ➢ the charges against Alimentation would be withdrawn, and the Competition Bureau would confirm that it would not recommend any further criminal prosecution against any of Groupe Couche-Tard companies or their directors, administrators or employees, regarding facts relating to the price of gas, regardless of territory, with respect to any facts prior to the date of execution ("the immunity clause"), ➢ Alimentation would pay $3.25 million and consent to a prohibition order against it under subsection 34(2) of the Competition Act , without any admission of liability, ➢ Alimentation would provide the Crown with [ translation ] "[its] factual and legal arguments in support of its corporate non-liability". [ 9 ] The very next day, Alimentation disclosed twelve separate grounds of defence to the Crown.

In particular, it argued that it was not the employer of Ms. Bonin and Mr. Bédard, the two employees charged with participating in the conspiracy, which therefore exonerated it of any criminal liability under

section 22.2 Cr. C. The Crown was not surprised by this defence, given Alimentation's refusal at the start of negotiations to admit that it was their employer for the purposes of the preliminary inquiry. At that date, however, it did not know which entity was their employer within the Couche-Tard group. [ 10 ] That same day, Mtre Saunders, director of the Public Prosecution Service of Canada, was informed by a colleague that the discussed agreement might be contrary to public interest. Neither of these parties knew the date on which the agreement had been finalized.

A few days later, after becoming familiar with its contents and analyzing the situation, Mtre Saunders repudiated the agreement, which he deemed to be contrary to public interest and likely to bring the administration of justice into disrepute. On January 21, 2010, Alimentation was informed verbally and immediately expressed its disagreement.

In a letter to counsel for Alimentation dated March 24, 2010, Mtre Saunders summarized the reasons for his [ translation ] "refusal to ratify" the agreement: [5] [ translation ] First, the public interest cannot condone a settlement exonerating a group of closely related corporations on the grounds that the company allegedly responsible had not at the time been identified , especially since most of the co-accused corporations and individuals, who had far less involvement than the liable entity in Groupe Couche-Tard, have entered guilty pleas and some have offered to collaborate with the investigation and the prosecution.

Second, one of the conditions of the agreement provided that a third party, the Competition Bureau, would undertake not to recommend charges against anyone from Groupe Couche-Tard for offences relating to the sale of gasoline. The scope of this condition went clearly beyond the file involving [Alimentation] and would have had the effect of bringing to an end any investigation into any company that is part of the group. The companies, which were not identified in the settlement, would have been protected from investigation, regardless of their territory.

You stated in your letter dated March 10, 2010, that the Groupe Couche-Tard businesses, your client Groupe (sic) Couche-Tard Inc. among them, are present in 10 Canadian provinces, 43 American states, and 7 other areas worldwide (China, Guam,

Hong Kong, Indonesia, Japan, Macao and Mexico). Moreover, the Competition Bureau refuses to commit to such an undertaking. (Emphasis added.) [ 11 ] In the days after this letter was sent, the Crown withdrew the charges against Alimentation but filed identical charges against the respondent, a member of Groupe Couche-Tard, which it considers to be the employer of the accused employees and therefore the company allegedly liable for the acts giving rise to the charges.

In response, the respondent presented a motion alleging abuse of process and seeking a stay of proceedings. [6] [ 12 ] The Crown does not deny that the respondent's defences to the charges against it are the same as those disclosed by Alimentation, with the exception of the one relating to the identity of the employer of the co-accused employees. The trial judgment [ 13 ] First, the trial judge accepted the Crown's claim that the agreement with Alimentation was contrary to the public interest, primarily due to the scope of the immunity clause, which [ translation ] "went far beyond what was necessary".

In his view, the difficulty identified by Crown counsel during settlement discussions having to do with the fact that Alimentation was not the employer of the employees who allegedly committed the acts, could have been easily resolved, even without an agreement, by withdrawing the charges and filing new ones against the actual employer.

Ultimately, the judge rejected the respondent's claims that the decision was made too quickly and concluded that the repudiation of the agreement, despite the exceptional nature of such an action, was neither arbitrary nor abusive. [ 14 ] The judge went on to note that even though the Crown had anticipated certain defences from Alimentation, it did not know what its defence strategy – which is essentially the same as the respondent's – would be before the defences were disclosed.

He found that it would be dangerous to assess the possible impact of the disclosure of each individual defence on the fairness of the respondent's trial because such an analysis would be based on hypothesis alone. In his view, the new Crown prosecutors assigned to the file would not be able to ignore what they had heard and, in such a situation, it would be [ translation ] "difficult to imagine that no irremediable harm was done to the fairness of the trial".

Only [ translation ] "persuasive evidence" could have led him to a contrary conclusion, and no such evidence was adduced. [ 15 ] Finally, despite the good faith of the parties, and even though society has an interest in seeing a judgment rendered on the charges, the judge found that a doubt would have persisted as to what the verdict would have been had the Crown not been aware of the respondent's defences before the trial. He also found that the amendment to

section 45 of the Competition Act adopted after the charges were filed makes the case less significant because it will not constitute a precedent. [ 16 ] He therefore ordered a stay of proceedings. Grounds of appeal [ 17 ] The parties do not agree on the wording of the issues in dispute. I will therefore state them as follows: 1) Did the trial judge err in finding that there was a violation of the respondent's right to a fair trial? 2) Was the stay of proceedings justified? Breach of fairness of the trial [ 18 ] The Crown's decision to repudiate a plea agreement, like its decision to file charges, is

an act flowing from the exercise of prosecutorial discretion. It is entitled to considerable deference and is subject to judicial review only in the case of abuse of process. [7] [ 19 ] Abuse of process takes place where the conduct of the state (the Crown in this case) compromises the fairness of an accused’s trial (the “main” category) or the integrity of the judicial process (the “residual” category). [8] [ 20 ] The respondent's main allegation is that its right to a fair trial was compromised.

While it claims that the Crown's conduct undermined the integrity of the judicial process, in my view, for the most part, the prejudice it alleges having suffered has nothing to do with the integrity of the system. [ 21 ] Repudiating a plea agreement is and must remain a rare and exceptional event because it is of crucial importance that plea agreements be honoured for the proper and fair administration of criminal justice. [9] It rests exclusively on the notion of the public interest and the obligation imposed on the prosecution to ensure the integrity of the criminal justice system. [10] It may take place only after serious consideration of the circumstances leading to the conclusion of the agreement and the prejudice that the repudiation might cause the accused. [ 22 ] The trial judge weighed the considerations that had led to the decision to repudiate the agreement with Alimentation, the process that ensued, and the conduct of Mtre Saunders, the main actor in this file.

He found that it was neither arbitrary nor abusive on the part of Mtre Saunders to consider, on the one hand, that the scope of the immunity clause covering all of the Groupe Couche-Tard companies for a period greater than that of the alleged facts was excessive, or to believe, on the other, that the lack of a guilty plea (unlike the agreements with the co-conspirators in the alleged unlawful competition) was not justified. In his view, the [ translation ] "weakness" in the Crown's case, discovered during negotiations and according to which Alimentation should never have been charged

because it was not the employer of the employees involved in the alleged conspiracy (and thus not the company that was actually liable),did not justify the plea agreement with Alimentation. [23] According to the respondent, this analysis is erroneous because the conduct of the Crown did not satisfy the criteria of cautionand rarity set out in R. v.

Nixon.[11] Even if we were to accept the judge's conclusion that the agreement was contrary to public order,the Crown would have acted precipitously, failing to analyze the reasons why Crown counsel had accepted the agreement in addition toerroneously evaluating the prejudice resulting from the repudiation.

Thus, it was not open to the Crown to repudiate the agreement withAlimentation. [24] Although this issue is interesting, I find that, as stated, it is not determinative in this case.[12] [25] The difficulty in this case does not arise from the decision to repudiate the agreement with Alimentation as such, because thecharges against it were subsequently withdrawn. Alimentation has thus suffered no prejudice, even though the repudiation occurred afterit had disclosed its defences.

Like Crown counsel before the trial judge, I also note that the prosecution should not come to an agreementwith a person about whom it is not [translation] "persuaded of a reasonable probability of conviction".[13] [26] The difficulty here lies more in the Crown's decision to bring identical charges against the respondent after becoming familiarwith all its defences because, to its knowledge, these defences are essentially the same as those disclosed by Alimentation. [27] Contrary to what the Crown argued before us, Alimentation's disclosure of the defences, save one,[14] was not [translation]"voluntary and inherent to the negotiation process".[15] The trial judge concluded instead that it resulted from the execution of one of theconditions of the plea agreement, as indeed the Crown argued at the time.[16] But for the plea agreement, Alimentation would not havedisclosed its defences and, as the trial judge noted, [translation] "each party expected the other party to fulfil its undertaking".[17] Thejudge's conclusion was based on the evidence and the Crown has not demonstrated a palpable and overriding error justifying ourintervention in this respect. [28] Our system of criminal justice rests in particular on the accused's rights to a fair trial and to silence, both of which are protectedby the Canadian Charter of Rights and Freedoms[18] (the "Charter").

It falls to the prosecution to prove the guilt of the accused, who isnever obliged to testify or, with some exceptions, to disclose his or her evidence[19] and defences before the prosecution has establisheda prima facie case against him or her.[20] In R. v. P. (M. B.),[21] Lamer C.J. wrote: Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his orher own prosecution: M. Hor, "The Privilege against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35, at p. 35; P. K.

McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 1:10100. This means, in effect, that an accused isunder no obligation to respond until the state has succeeded in making out a prima facie case against him or her.

In other words, until theCrown establishes that there is a "case to meet", an accused is not compellable in a general sense (as opposed to the narrow, testimonialsense) and need not answer the allegations against him or her. […] Before trial, the criminal law seeks to protect an accused from being conscripted against him- or herself by the confession rule, the rightto remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence:R. v. Hebert, (SCC), [1990] 2 S.C.R. 151.

With respect to disclosure, the defence in Canada is under no legal obligationto cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physicalevidence. In obiter, this Court suggested in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, at p. 333, that 326, at p.333. [...] The suggestion that the duty [of disclosure] should be reciprocal may deserve consideration by this Court in the future but is not avalid reason for absolving the Crown of its duty.

The contrary contention fails to take account of the fundamental difference in therespective roles of the prosecution and the defence. [...] [...] I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown foruse in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has noobligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution.

The absence of a duty todisclose can, therefore, be justified as being consistent with this role. [Emphasis added.] (Emphasis added.) [29] Albeit in a different context (one concerning the re-opening of the evidence by the prosecution), the Supreme Court judgment inR. v. G. (S.G.)[22] noted the prosecution's advantage in being informed of an accused's defences: [38] One of the primary concerns that arises from permitting the Crown to reopen during the third phase of the trial is that the right ofaccused persons not to be conscripted against themselves will be compromised.

This right is protected under s. 7 of the Charter. AsLamer C.J. stated in P. (M.B.), at p. 580, “there is a real risk that the Crown will, based on what it has heard from the defence once it iscompelled to ‘meet the case’ against it, seek to fill in gaps or correct mistakes in the case which it had on closing and to which thedefence has started to respond”. The Crown must not be allowed to change the case it has presented once the accused has begun toanswer the Crown’s case: P. (M.B.), at p. 580. 1148, at p. 580. The accused’s right against self-incrimination is not the only significantconcern, however.

There may also be an impact on the right to make full answer and defence, and the general right to a fair trial. (Emphasis added.) [30] In this case, the respondent, even as a legal person, benefits from the protection afforded by paragraph 11(

d) of the Charter[23]

and has the right to a fair trial. [31] Therefore, by filing charges against the respondent after having had access to its defences further to the enforcement of a pleaagreement involving Alimentation, the Crown, albeit in good faith, prima facie exercised its discretion in a manner contrary to thisfundamental principle. [32] I am of the view that, as in a case when the Crown obtains evidence in violation of the solicitor-client privilege enjoyed by anaccused, the result is a presumption of prejudice to the fairness of the trial, which is however rebuttable. [33] In R. v.

Bruce Power,[24] the Court of Appeal for Ontario concluded as follows: In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protectedby solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable. [34] Its conclusion was based on, inter alia, the following remarks of Binnie J. in Celanese Canada Inc. v. Murray DemolitionCorp.:[25] This Court’s decision in MacDonald Estate v.

Martin, (SCC), [1990] 3 S.C.R. 1235, makes it clear that prejudice will bepresumed to flow from an opponent’s access to relevant solicitor-client confidences.

The major difference between the minority andmajority in that case is that while the majority considered the presumption of risk of prejudice open to rebuttal in some circumstances(pp. 1260-61), the minority would not have permitted even the opportunity of rebuttal (p. 1266). [35] The fact that in this case the respondent's defences were not disclosed in violation of a protected right as would have been thecase with solicitor-client privilege does not in my view justify a different conclusion as to the existence of a presumption of harm.Admittedly, an accused is not “entitled” to a plea agreement nor to constitutional protection from the consequences of the repudiation ofsuch an agreement.

Contrary to the Crown's argument, however, it is not the actual disclosure of the respondent's defences that caused itprejudice, but the Crown's decision to file charges after obtaining such disclosure pursuant to the plea agreement with Alimentation,which was subsequently repudiated.

In such a context, it is legitimate to presume that the balance between the Crown and the accused atthe basis of our criminal justice system is modified in favour of the former and therefore to the detriment of the latter. [36] Moreover, when the plea agreement was repudiated, Mtre Saunders was fully aware of the imbalance resulting from thedisclosure of the defences and the prejudice that could ensue, but was of the view that this was not the case here.

In the sworn statementhe filed to explain his reasons for repudiating the agreement, he wrote:[26] [28] We concluded that the fact that the accused had indicated that these defences would be raised did not amount to prejudice as they ineffect were simply an indication from the accused that the Crown would have to prove all the elements of its case. [29] As a result of the above, I decided to set aside the plea resolution as I was satisfied that it was contrary to the public interest and thatthe accused could be placed back in the position they were in before the resolution. [...] (Emphasis added.) Although Mtre Saunders refers in these paragraphs to "the accused" and only Alimentation was an "accused" at the time the agreementwas repudiated, it must be understood from his analysis that the same conclusion was required with regard to the entity within theGroupe Couche-Tard that could be charged (once it was identified).

It should be recalled that, at the time of repudiation, the Crown wasalready convinced that Alimentation was not the corporation involved in the conspiracy. [37] The trial judge did not share this opinion, however, at least in respect of the respondent. Instead, he found that the Crown hadnot rebutted the presumption of harm, and the Crown has not persuaded me that this conclusion contains a reviewable error. Thedefences raised by the respondent go beyond a mere denial of the elements of the alleged offence.

Of course, the Crown had alreadyanticipated the existence of some of them; it would have been surprising that it had not. However, it now knows the respondent's defencestrategy, including, primarily, the aspects of the Crown's expert report that it intended to challenge to counter the charges, as well as theexistence of an email drafted by Richard Bérubé, one of the accused employees, whose participation in the offence is essential toestablish the guilt of the respondent under

section 22.2(

c) Cr. C. [38] The Crown obtained this information in exchange for an agreement that it later unilaterally decided to repudiate. Thesubsequent filing of charges against the respondent upsets the balance that should have existed between the parties when the chargeswere filed and compromises the fairness of the respondent's trial. [39] Although the Crown's good faith is not in question, the exercise of its discretion in this case amounted to abuse of process. [40] That said, we must now consider whether a stay of proceedings is in order.

Stay of proceedings [41] The standard of review applicable to the Court's decision to order a stay of proceedings is well established. Since it is adiscretionary remedy, an appellate court's intervention is justified only if the trial judge has misdirected himself in law, committed areviewable error of fact, or rendered a decision that is “so clearly wrong as to amount to an injustice”.[27] An appellate court may notsubstitute its own decision for that of the trial judge solely because of its divergent assessment of the facts.[28] [42] In R. v.

Babos,[29] a unanimous judgment of the Supreme Court rendered after the hearing of this appeal, Moldaver J. outlinedthe test to determine whether a stay of proceedings is justified in a case of abuse of process (whether resulting from a threat to thefairness of the trial or from an infringement of the integrity of the judicial process). It has three stages:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” ( Regan , at para. 54 );

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57). (Citations omitted.) [ 43 ] Regarding the first stage of the test, the Supreme Court noted the importance of the first criterion, according to which the stay of proceedings is a prospective and not a retrospective remedy: [30] [91] The first criterion is critically important.

It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. [...] [ 44 ] In this case, the infringement of the respondent's right to a fair trial and the resulting [ translation ] "injustice" would indisputably be perpetuated by the holding of the trial.

Quite simply, the balance that should have existed at the start of proceedings no longer exists. [ 45 ] At the second stage of the test, it must be determined whether another remedy, short of a stay, is capable of redressing the prejudice. [31] As Doyon J. points out in Brind'Amour v.

R ., [32] it must be borne in mind that a stay of proceedings is a draconian remedy that must be reserved for only the clearest of cases where no other measure could redress the prejudice. [ 46 ] When the fairness of the trial is at issue, as it is here, the objective is "restoring an accused’s right to a fair trial" [33] which may be achieved through "procedural remedies". [ 47 ] In this case, the trial judge concluded that the only procedural remedy suggested by the Crown is insufficient to ensure a fair trial.

In his view, the Crown's undertaking not to use the information about the defences obtained through disclosure is illusory and insufficient. He wrote: [ translation ] [32] [...] As the undersigned wrote on November 29, 2011, [ translation ] "it is not possible here to turn back the clock". What is done is done. Despite the good will of the prosecution, despite the fact that the counsel on the file are different from those who occupied those positions at the time, the prosecution will never be able to ignore what it learned through disclosure .

And even if it offered not to use a piece of evidence, the fact remains that, as a general rule, it is difficult to imagine that no irremediable harm was done to the fairness of the trial. [...] [39] [...] A doubt will always remain about any eventual guilty verdict because the citizen aware of all of the facts could rightly wonder what would have happened if the prosecution had not been aware of the accused's defences long beforehand. (emphasis added; citation omitted) [ 48 ] The Crown has not persuaded me that this conclusion is tainted by a palpable and overriding error of fact.

Deference is therefore in order. Moreover, in its factum, the Crown recognizes that [ translation ] "it goes without saying that the prosecution will not subsequently be able to ignore [the defences thus disclosed]". As the Court of Appeal for Ontario notes in R. v.

Bruce Power , [34] it is therefore difficult if not impossible for a judge to determine the impact of this disclosure, particularly on the possible testimony of the Crown's expert witness (in his cross-examination, inter alia ) [35] and the Crown's strategy: [48] […] In my view, it would be difficult, if not impossible for a witness who has read the report to erase its contents from his or her consciousness.

Moreover, it would be difficult, if not impossible, for the court to determine what effect the report may have had on a witness’s testimony and whether the prosecutor’s strategy has been indirectly, at least, affected by his witnesses having read the report. [ 49 ] The Crown adds that, [ translation ] " given the uncertainty as to the effect of the abuse , the judge should have weighed the public interest in proceeding with the case instead of suspending it definitively, which he erroneously did" [36] (emphasis added). [ 50 ] In my view such an argument does not justify the intervention of the Court here. [ 51 ] No one can contest the seriousness and gravity of the offences alleged against the accused, which are central to the Competition Act .

Contrary to what the trial judge wrote, the fact that

section 45 of this statute has been amended since the charges were filed does not diminish their importance. Consequently, it is in the public interest for this type of conduct to be reprimanded when it occurs. The public interest, however, also requires that the fundamental values of our criminal justice system be respected. And as noted by Moldaver J. in R. v. Babos , [37] the weighing of the interests in the third stage of the test often adds little to the analysis when the main category of abuse (infringement of procedural fairness) is alleged; society has no interest in holding an unfair trial.

Such is the case here. [ 52 ] In conclusion, I would add that I am aware that the trial judge ordered the ultimate sanction available, a stay of proceedings.

This is why, during the hearing of this appeal, the Court asked counsel whether there was "an alternative remedy capable of redressing the prejudice", which would also be "appropriate and just", within the meaning of subsection 24(1) of the Charter . [38] If a final judgment on the merits of the charges is not possible in the circumstances, it must be determined whether society's interest in a final settlement of the issue might urge at the very least an order compelling the respondent to respect the undertakings covenanted by

Alimentation.

I note that Alimentation had agreed to pay $3.25 million and to comply with an order of prohibition under subsection 34(2) of the Competition Act in exchange for a clause immunizing it from prosecution, which was negotiated primarily in favour of the respondent and which constitutes the entire basis of its application to stay proceedings. [ 53 ] The respondent recognizes that this remedy [ translation ] "[...] would not constitute an inadequate solution to remedy the prejudice observed by the trial judge". [39] It therefore would have been disposed to respect the undertakings agreed to by Alimentation.

For its part, the Crown maintains that it would be inappropriate and contrary to subsection 24(1) of the Charter , on the grounds that, in its view, the plea agreement with Alimentation runs contrary to the public interest and the remedy at issue [ translation ] "[...] interferes with prosecutorial discretion". [40] [ 54 ] The situation might have justified a different analysis of the public interest from that prevailing in 2010 (when the agreement was repudiated) on account of, among other factors, the erroneous premise of the Crown regarding the impact of the disclosure of the defences on the fairness of the trial.

But this is not the Crown's position. It therefore seems inappropriate to order a remedy that could be perceived as a plea agreement with the respondent when no such agreement was ever concluded with this accused, and to thereby usurp the role of the prosecution in the exercise of its discretion. This is not a remedy that may be imposed by a criminal court. [ 55 ] Given the lack of another remedy short of a stay of proceedings, I am of the view that the appeal should be dismissed. MANON SAVARD, J.A. 45.

(1) Commet une infraction quiconque, avec une personne qui est son concurrent à l’égard d’un produit, complote ou conclut un accord ou un arrangement : 45.

(1) Every person commits an offence who, with a competitor of that person with respect to a product, conspires, agrees or arranges

c) soit pour fixer, maintenir, contrôler, empêcher, réduire ou éliminer la production ou la fourniture du produit. (

c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product.