2017 QCCA 244, 2017 QCCA 244

Gosselin c. R. 2017 QCCA 244 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005399-132 , 500-10-005496-136 (450-73-000743-108 sec. acc. 003) DATE: February 15, 2017 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARTIN VAUCLAIR, J.A. ÉTIENNE PARENT, J.A. YVES GOSSELIN APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT : On the appeals from two judgments rendered March 22, 2013, and August 16, 2013, by the Superior Court of Quebec, Criminal Division, District of St-François (the Honourable François Tôth), which respectively declare the appellant guilty of violating s. 45(1) (

c) of the Competition Act , R.S.C. 1985, c. C-34 and condemn him to a fine of $15,000 to paid within 15 days. [ 2 ] For the reasons of Vauclair, J.A., with which Duval Hesler, C.J.Q. and Parent, J.A. agree: [ 3 ] DISMISSES the appeals. NICOLE DUVAL HESLER, C.J.Q. MARTIN VAUCLAIR, J.A. ÉTIENNE PARENT, J.A.

Mtre Dominique St-Laurent Mtre Éric Sutton PERIS SUTTON ST-LAURENT For the appellant Mtre Louis Champagne PUBLIC PROSECUTION SERVICE OF CANADA For the respondent Date of hearing: June 15, 2016 REASONS OF VAUCLAIR, J.A. [ 4 ] The appellant appeals from a verdict rendered by the Honourable François Tôth of the Superior Court, District of St-François, on March 22, 2013, which, at the end of a 23-day trial, convicted him of having violated s. 45(1) (

c) of the Competition Act , R.S.C. 1985, c. C-34: 2013 QCCS 1223 . [ 5 ] He also appeals from the sentence imposed on August 16, 2013, condemning him to pay a fine of $15,000: 2013 QCCS 4040 .

[6] The charges were the result of an investigation of gasoline cartels in Quebec between 2004 and 2006. At trial, electronicsurveillance, among other things, supported the investigators’ field observations of gasoline price variations. The conspirators alsotestified to explain the conspiracy. BACKGROUND [7] In the summer of 2004, the Competition Bureau met with a gasoline retailer who claimed he was being pressured bycompetitors to fix his gas prices. This sparked an investigation and electronic surveillance was put in place.

In the regions of Sherbrookeand Magog, gasoline price hikes were coordinated among various service station banners to the detriment of consumers.

At the centre ofthis collusion was “Dépanneurs Couche-Tard” (hereinafter “Couche-Tard”) which operated under various banners and put in place aprice centre all used to coordinate the hikes. [8] Sylvie Fréchette and Valérie Houde, two co-accused jointly charged with Yves Gosselin (hereinafter “Gosselin” or the“appellant”), pleaded guilty at the opening of the trial. [9] The count against the appellant alleges: [translation] 1.- Between April 1, 2005, and on or about May 29, 2006, in Sherbrooke, District of Saint-François, Laval, District of Laval,Drummondville, District of Drummondville, Montreal, District of Montreal, St-Jean-sur-Ie-Richelieu, District of Iberville, and elsewherein the province of Quebec, did conspire, combine or agree with the following persons: Carole Aubut, Robert Beaurivage, Claude Bédard,Richard Bédard, France Benoît, Louise Bonami, Céline Bonin, Pierre Bourassa, Fabien Chouinard, Jean-Claude Clément, Henry Colby,Harold Côté, Julie Côté, Luc Couturier, Yves Daigneault, Francis Dubreuil, Michel Dubreuil, Gisèle Durand, Jean-Pierre Durand, NycoleDurand, Lucie Francis, Luc Forget, Stéphane Grant, Gérald Groux, Jean-Pierre Hétu, Johanne Jutras, Denis Laflamme, FernandLaflamme, Daniel Leblond, Jean-Guy Léveillée, Renaud Loignon, Richard Michaud, Christian Payette, Martin Proulx, Michel Rioux,Tina Rouleau, Guy Roy, René Roy, Léo-Paul Therrien, Serge Therrien, Sylvie Turgeon, Yvon Vadnais, Couche-Tard Inc., Global FuelsInc., Jean-Guy Léveillée Libre-Service Inc., Gaz-de-I'Estrie Inc., Gaz-O-Pneus Inc., Gérald Groulx Station Service Inc., Les PétrolesTherrien Inc., Les Distributions Pétrolières Therrien Inc., Service Autogarde 0.0. inc., Université Galt Service Inc., 134553 Canada inc.,9038-6095 Québec Inc., 9045-0586 Québec inc., 9064-4360 Québec inc., 9046-0601 Québec inc., 9131-4716 Québec inc., 2311-5959Québec inc., 9010-1460 Québec inc., as well as with other persons as yet unknown, in order to unduly prevent or lessen competition inthe retail sale of regular gasoline in the Sherbrooke market by price-fixing, thereby committing the indictable offence under s. 45(1)(

c) ofthe Competition Act. [10] The prosecution’s evidence concerns 64 service stations, identified as the Sherbrooke and Magog markets. The Magog marketinvolves other co-accused, whereas the appellant, an Irving Oil representative, is connected to the Sherbrooke market, in which hesupervises the “Accommodation Domon” service station. [11] At trial, a map and a list of the service stations in question and their locations were filed, illustrating the scouting performedduring the investigation, notably in the Sherbrooke market. Admissions were filed at the very beginning of the trial.

The testimony oftwo participants in the conspiracy and the electronic surveillance completed the prosecution’s evidence. [12] The co-accused, including the appellant, then brought motions for non-suit, which created some confusion. In response, theprosecution sought and obtained leave to reopen its case. The prosecution then called an expert to establish the markets at issue and theundue influence on competition. Finally, the appellant testified in his defence.

THE ISSUES IN DISPUTE [13] The appellant criticizes the judge for allowing the prosecution to reopen its case after a motion for non-suit was brought, forrefusing to declare a mistrial, and for concluding that the service station the appellant supervised was in the Sherbrooke market and thusrendering an unreasonable verdict. Finally, the appellant alleges that the judge erred in assessing his credibility. [14] This is how the appellant formulated the issues: [translation] 1. The trial judge erred in law by granting the prosecution’s motion to reopen its case without applying the test in R. v.

P. (M.B.), (SCC), [1994] 1 S.C.R. 555; 2. The respondent-prosecutrix failed to establish that the service station supervised by the appellant was in the Sherbrooke market,thereby rendering the verdict unreasonable; 3. The trial judge erred in law by dismissing the appellant’s motion for a mistrial despite the evidence he had previously accepted; 4. The trial judge erred in law by rejecting the accused’s version further to an analysis of his credibility based on criteria that areinadmissible in law. [15] The first two grounds of appeal ultimately concern evidence regarding the markets.

The appellant claims that the prosecutionnever established that the Accommodation Domon service station was in the Sherbrooke market either in its initial case or with theadditional evidence filed after it was unlawfully allowed to reopen its case. [16] The third ground concerns a second incident. Two days after the case was taken under advisement, the judge held a sentencinghearing for the two co-accused who pleaded guilty at the beginning of the trial.

The appellant argues that the statement of facts presentedat that point, the existence of which he learned of only by chance, was prejudicial to his defence because it described him as a party to the

combination. He found it [translation] “odd” that the co-accused’s sentencing and the appellant’s verdict were initially scheduled to beheard the same day. The appellant brought a motion for mistrial, which was dismissed by the judge. He argues that the judge erred. [17] Finally, through his last ground, the appellant argues that his credibility was assessed on the basis of criteria that areinadmissible in law. He quotes the judgment in an attempt to show that the judge failed to give him the benefit of any reasonable doubt.

ANALYSIS [18] The issues relating to the verdict will first be addressed in order before determining the questions regarding the motion and theappeal from the sentence. ISSUE 1 1. The trial judge erred in law by granting the prosecution’s motion to reopen its case without applying the test in R. v.

P. (M.B.), (SCC), [1994] 1 S.C.R. 555. [19] Greater detail is necessary to understand this ground. [20] When the prosecution declared its case closed, all the accused, including the appellant, presented a motion for non-suit.Although he agreed with the position of the other co-accused who insisted that there was no evidence of undue influence on the relevantmarket, in his verbal motion, the appellant argued primarily - if not exclusively - that there was no evidence defining the Sherbrookemarket.

More precisely, he argued that the evidence did not ground a conclusion that the Accommodation Domon service station was inthe Sherbrooke market within the meaning of the case law, as the indictment claimed. [21] For its part, the prosecution submitted that the admissions - especially the second - constituted a fin de non-recevoir with respectto the submission that there was no evidence of undue influence. With respect to market definition, it argued that the evidence supporteddismissing the motion for non-suit at that stage.

Among other things, it argued that the market definition in this case did not present anyparticular difficulties, especially in light of the admissions as to the identity of those involved, the field survey of the businesses present,and the participation of all or almost all in the conspiracy. [22] In any event, since an essential element of the offence – i.e., the undue influence of the conspiracy on the market – stillappeared to be in dispute despite the admissions, the prosecution asked to reopen its case.

The defence’s about-face created uncertaintyas to whether this element existed, so reopening the case had to be authorized. [23] After analyzing the elements of the offence and the admissions, the judge found that the prosecution’s argument appeared tocorrespond to the [translation] “natural scope” of the admission: 2013 QCCS 716 at para. 23.

He implied, however, that a good-faitherror might have been made and, in the absence of prejudice to the defence, he authorized the reopening of the case. [24] The decision to reopen a case is discretionary and, insofar as the defence does not suffer prejudice as a result, appellate courtswill generally show deference: R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716 at para. 29. In R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555, the Supreme Court clearly sets out this rule.

Although discretion is more limited in a motion for adirected verdict or for non-suit, it may be permitted in cases of inadvertent omissions when justice so requires and there will be noprejudice to the accused: R. v. P. (M. B.), [1994] 1 S.C.R. 555 at 569–570. [25] In principle, a judge cannot allow a case to be reopened to enable the prosecution to fill a gap in the evidence. The Court added,however, that the defence cannot complain of a motion to reopen when the prosecution’s omission or mistake is attributable to its ownconduct: R. v.

G. (S.G.), (SCC), [1997] 2 S.C.R. 716 at para. 34. [26] I agree with the prosecution’s position observing the appellant’s about-face regarding the scope of the admissions. As the judgeobserved, not only does the natural scope of the admissions favour the prosecution, so does the conduct of counsel for the defence. [27] It should be noted that the parties filed formal admissions at the outset of the trial, as allowed under s. 655 Cr. C. As with anyevidence, the admissions are better understood when analysed in context.

They are therefore reproduced in their entirety in the annex, butI highlight certain excerpts here: [translation] 1. Without admitting their own involvement, the accused admit the existence of a conspiracy between the other persons named in theindictment as well as persons as yet unknown, by which these persons combined or agreed or arranged together to fix the pump price ofregular gasoline in the markets of Sherbrooke and Magog, Quebec, between April 1, 2005, and May 29, 2006. 2. This conspiracy unduly prevented or lessened competition in the markets of Sherbrooke and Magog. 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 servicestations was initiated. … 5. The identity of the accused is admitted. They respectively occupied the following roles and had authority to set the pump price of gas: Yves Gosselin: territory representative for the Irving Oil Company. He gave instructions to the manager of the “AccommodationDomon” service station located at 2235 Route 220, Sherbrooke (St-Élie d’Orford sector), operating under the Irving banner, respectingthe gas price that this service station should display.

[Emphasis added.] [28] The admissions were drafted by the prosecution prior to being accepted by the appellant and the other co-accused, as theyshould be: R. v. Castellani, (SCC), [1970] S.C.R. 310. At the beginning of the trial, they were presented to the judgewithout objection from the defence.

Counsel for the prosecution explained the expected effect of the admissions as follows: [translation] With respect to the elements of the offence, the existence of the conspiracy alleged in these two (2) indictments is admitted, as is itsundue effect on competition in these two markets, this means the prosecution need not discharge the burden of showing the existence ofthe conspiracy, the overall conspiracy, or the effect of the conspiracy on competition, as these are already admitted.

There therefore remains a single question for the Court, namely whether the accused were involved in this conspiracy. [29] After this representation, all counsel said they had no additional remarks, save Mtre Walsh, counsel for another co-accused, buthis comments concerned the unfolding of the proceedings and his hope that the duration could be shortened.

A brief conversation on thesubject ensued. [30] Although counsel for the appellant said nothing, he also failed to react when Mtre Beaudry, counsel for another co-accused,described the prosecution’s future task in the following way: [translation] I understand that my colleague, because the defences we presented to him states that we were not part of this conspiracy, it’s obvious thatto tie us to it, some evidence must be presented. But I don’t think that it is necessary to provide evidence of the entire conspiracy from itsbasic workings on up, because it is admitted that there was a conspiracy.

So, all we have to do, I think that we can boil it down to tying – I’m expressing myself... I chose the wrong word - to tying the accused tothis conspiracy, rather than proving the conspiracy that has been admitted. It would save a lot of time. [31] At this point, everyone seemed to be of the opinion that the prosecution had to demonstrate that the accused’s conduct andintention was to be involved in the admitted and existing conspiracy.

In other words, the other elements of the offence – morespecifically, that the conspiracy had an undue effect on competition and that the service stations involved were in the Sherbrooke andMagog markets – were not at issue. [32] We may wonder why the appellant has maintained the opposite both at trial and on appeal. [33] In fact, on January 9, 2013, at the outset of the trial, the appellant observed that about a dozen intercepted conversations, of theapproximately 30 that the prosecution intended to file, concerned neither regular gasoline nor the Sherbrooke market.

Through hiscounsel, he signed a motion to exclude evidence based in part on the fact that some of the intercepted conversations had nothing to dowith the Sherbrooke market: [translation] That’s right, Your Honour. Out of 30 that concern my client, I submitted ten or so, in fact 1/3 of the conversations to my colleague whichappear to me - in my humble opinion, of course - to be irrelevant, actually, to the debate about the Sherbrooke market and the regulargasoline market.

I therefore submitted the list to my colleague. [34] That being the case, the appellant did not seek the exclusion of other conversations on the grounds of irrelevance to theSherbrooke market. [35] Moreover, on at least one occasion, the appellant asked a question about the Sherbrooke market, showing that the concept is notambiguous. He asked the conspirator Pierre Bourassa whether: [translation] Q.

(194) Couche-Tard/Petro-Canada, does that also exist? Maybe not in the Sherbrooke market, you know, just saying, let’s say at theQuebec level. [36] In my opinion, not only was the concept of the Sherbrooke market admitted, but everyone began the trial with the understandingthat the service stations identified were part of that market. After all, to argue that a conversation has no relevant link to the Sherbrookemarket, one must be able to clearly identify that market.

When other conversations not included in the motion are considered, particularlyone involving a message to Accommodation Domon (No. 00722), it becomes clear that the prosecution was right to believe that theappellant did not dispute that his territory was in the Sherbrooke market. [37] Obviously, this [translation] “second” reading of the situation is harsher toward the appellant than that of the trial judge, whoattributed confusion and good faith to the parties. Both readings, however, can justify reopening the case.

Nevertheless, I accept that theprosecution was indeed misled. [38] This first ground must be dismissed. ISSUE 2 2. The prosecution failed to establish that the service station supervised by the appellant was part of the Sherbrooke market,thereby rendering the verdict unreasonable.

[39] Because admission No. 2 respecting undue effect was withdrawn, the prosecution called an economist to testify, then filedhundreds of additional intercepted telephone conversations. [40] The expert witness commented on the previously-filed map of the Sherbrooke market, accepted it, and concluded that itincluded the Accommodation Domon service station. He explained that the Magog and Sherbrooke markets, while geographically nearone another, were nevertheless distinct.

According to the expert, because the market for gasoline is [translation] “a relatively localmarket” and the product is quite homogeneous, consumers do not travel great distances to procure it. Finally, he took the data from theRégie de l’énergie into consideration in defining the markets.

By using statistical indices specific to competition, he determined that theSherbrooke market was very highly concentrated, revealing the cartel’s commercial power and the ability of the service stations todictate prices higher than what an open market will tolerate. [41] The investigator also testified regarding his field observations which confirm price changes at various service stations, includingthe independent Irving retailer Accommodation Domon, that are consistent with the intercepted conversations.

Some conversations alsoconfirm that the appellant dictated the prices of this service station and, on one occasion, its owner even left a message with Gosselin toconfirm that he had acted as agreed. [42] The appellant argues that this evidence does not demonstrate that the Accommodation Domon service station is part of theSherbrooke market. The argument – which, incidentally, is quite muddled – is without merit, regardless of the approach taken. [43] Ultimately, the appellant disputes the weight to be assigned to the expert report, but fails to raise any errors by the judge in hisassessment of this evidence.

Yet, it is common ground that the weight given to testimony, including expert testimony, is a matter for thetrier of fact: R. v. Ratti, (SCC), [1991] 1 S.C.R. 68 at 81; R. v. Thibault, (Que. C.A.). [44] For this reason, this ground must fail. ISSUE 3 3. The trial judge erred in law by dismissing the appellant’s motion for a mistrial despite the evidence he had previouslyaccepted. [45] In principle, the appellant is a third party to the two co-accused who pleaded guilty at the outset of the trial. He has no say in thesentencing of these two persons.

The judge presiding the sentencing hearing hears the evidence submitted by the parties.

The appellantcould not ask the judge to withdraw the joint statement of facts submitted to him for the purpose of determining a fit sentence. [46] According to the appellant, the joint statement of facts described him as participating in the conspiracy, thereby puttingadditional extrinsic evidence before the judge who had yet to decide his fate. [47] Admittedly, a judge should avoid hearing evidence that might influence or appear to influence another judgment that he mustrender. [48] For example, without deciding whether this necessarily raises questions of bias, courts have decided that it would be preferablefor judges to recuse themselves when, following a guilty plea, they hear detailed evidence on sentencing and the plea is withdrawn: R. v.Da Silva (1985), (ON CA), 18 C.C.C. (3d) 102 (Ont.

C.A.). The same is true of trial judges who have previouslyheard a preliminary inquiry on the same facts: Flamand v. R., 2016 QCCA 360 at paras. 19–20. In principle, the number of availabledistrict judges mitigates real or apparent questions of bias in most cases. [49] That being said, that such an approach is advisable does not determine whether these situations necessarily raise questions ofbias within the meaning of the case law. In this respect, the reasons of this Court on the issue of apparent bias in Flamand v. R., supra,apply.

After recalling the principle of taking care to avoid any appearance of bias, the Court explained that the mere exposure of a judgeto extrinsic evidence related to a case he is hearing is not enough to call his impartiality into question. The Court wrote: [translation] [19] It goes without saying that a verdict must rest solely on the evidence adduced at trial. Moreover, criminal law does not prohibit ajudge from presiding over both preliminary inquiry and trial, even if it is usually preferable that it not be the same judge.

As JusticeCharron of the Court of Appeal for Ontario, as she then was, reiterated in R. v. Perciballi, “[t]he mere prior involvement of theauthorizing justice in an earlier proceeding does not, without convincing evidence to the contrary, displace the presumption of judicialintegrity and impartiality ...

Trial judges routinely exclude evidence that they have heard on a voir dire, or hear confessions or guiltypleas by co-accused and go on to preside a trial of an accused”. [20] It is not enough for the appellant to invoke the mere fact that the trial judge read the hearing transcripts from the preliminaryinquiry; he must demonstrate concretely that this extrinsic evidence gave rise to a reasonable apprehension of bias at trial.

As this Courtrecently pointed out in Hamroun, the judge presiding the trial is presumed to know the law; he knows that the evidence used to committo trial is not evidence for the purposes of that trial.

Therefore, it is not enough to ground the argument of bias to show that the judgeknew about extrinsic evidence; [translation] “rather, it is the judge’s conduct that must be analyzed in each case to determine if there is areasonable apprehension of bias”. [Citations omitted.] [50] Subject to special circumstances, it is undoubtedly more prudent for a judge who is the trier of fact in a trial with severalaccused to wait for all the verdicts to be rendered before hearing the submissions on sentencing of co-accused who have pleaded guilty.It falls to all parties to be vigilant in this respect. [51] Such a precaution, however, is not an insurmountable obstacle.

In this case, the judge was aware that the proceedings had to be

compartmentalized, pointing out in his judgment that the appellant [translation] “still benefits from the presumption of innocence and hisdefence is intact”. [52] It was up to the appellant to demonstrate concretely that the situation gave rise to a reasonable apprehension of bias at trial,which he has failed to do. His ground remains a statement of principle and is dismissed. ISSUE 4 4. The trial judge erred in law by rejecting the accused’s version following an analysis of his credibility based on criteria that areinadmissible in law. [53] This ground is without merit.

The judge examined the evidence as a whole, decided the issues in dispute and, above all, did notbelieve the testimony of the appellant who basically explained that he never knew about the collusion or intended to take part as alleged. [54] In a way, by attempting to convince the Court that his

interpretation of the evidence is the correct one, the appellant is re-pleading his case. The role of an appellate court is not, however, to substitute its opinion on questions that are the purview of the trier offact. These questions, findings of fact or credibility, clearly fall with the purview of the trier of fact and, subject to a palpable andoverriding error, an appellate court should not intervene: R. v. Clark, 2005 SCC 2 , [2005] 1 S.C.R. 6 at para. 9; R. v. Gagnon,2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 10.

The appellant has demonstrated no such error. [55] In defence, the appellant testified at length with respect to his role as an Irving representative and the immense territory that hesupervised. This territory extended from south of the St. Lawrence River to the American border, from Boucherville to Rivière-du-Loupand the Gaspé, as well as three service stations in Quebec City. [56] His predecessor had explained that, in this job, the objective was to follow what the large oil companies did on the market.

Tothat end, the appellant had parcelled the territory into price zones that he watched to in order to report fluctuations in his competitors’pump prices to his New Brunswick price centre so that Irving could make decisions for his price centre. At one time, when his territorywas small, he could visually observe his competitors’ pump price fluctuations. In the relevant years, his territory was too vast to proceedthis way.

Because he lived in Quebec City, he was quite a distance from the Sherbrooke sector. [57] He also explained that, for him, Couche-Tard was an Irving business partner because it managed Irving banners. Consequently,it was not – at least not in his eyes –his competitor. He does acknowledge, however, that Couche-Tard had the final word on gasolineprices at its businesses and that Irving had the final word on its own prices at its independent retailers. It was nevertheless in the spirit ofcooperation that the appellant discussed the price of gasoline only for Couche-Tard’s stations under the Irving banner.

In his view, this issupported by the electronic surveillance. His cooperation with Couche-Tard allowed him to manage the territory he supervised. Heexplained that he followed the prices set by big oil companies (Petro-Canada, Esso, and Shell) and nothing else. It was his understandingthat this was not against the law.

He was only doing his job, as he had been taught to do. [58] To put it plainly, as the appellant noted in his factum, he testified that what was actually observed reflects the concept of[translation] “conscious parallelism”, as explained by the investigator, among others, and which is nothing more than the adjustment ofthe anticipated price after observing a competitor’s price increase or decrease, not a conspiracy to unduly lessen competition. [59] The judge’s analysis is convincing.

Once again, because the appellant did not allege any error of law, he had to show a palpableand overriding error of fact, which he has failed to do. He has not convinced me that the judge shifted the burden of proof respecting histestimony, or that the judge ignored [translation] “conscious parallelism” in his analysis. The judge dealt with the defence the appellantsubmitted. The judge did not believe him. The judge found that [translation] “It is easy to see right through Mr.

Gosselin’s explanations”.He noted that the intercepted conversations contradicted him in some respects. [60] Indeed, several conversations adduced into evidence show not only that Irving and Couche-Tard discussed and fixed prices, butthat the network extended to other banners. They show, as the judge noted, that the appellant was involved, that he both sent andreceived information about the price of gasoline and, finally, that he ensured that the independent service station AccommodationDomon played along.

Conversations also confirm that the appellant dictated the service station’s prices and, as mentioned above, on oneoccasion its owner even left a message with the appellant to confirm that he had acted as agreed. [61] The investigator testified regarding his field observations, which confirm price changes consistent with the interceptedagreements at the various service stations, including the independent Irving retailer, Accommodation Domon. [62] The evidence as a whole allowed the judge to find as he did with respect to the appellant’s credibility.

As was his duty, thejudge considered the appellant’s version, not in vacuum, but in light of the evidence as a whole. In R. v. Dinardo, 2008 SCC 24 ,[2008] 1 S.C.R. 788 at para. 23, the Supreme Court writes: … In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trialjudge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

In my view, thesubstantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency of his reasonsfor judgment. [Emphasis added.] See also R. v. Potvin, (QC CA), [1994] R.J.Q. 640 (C.A.); R. v. El Faf, 2009 QCCA 556 at paras. 23 and 39; R. v.Fournier, 2014 QCCA 1758 at para. 9; LSJPA – 1521, 2015 QCCA 1229 at para. 39; R. v. Takri, 2015 QCCA 690 at paras. 28 and 39;R. v. Threefingers, 2016 ABCA 225; R. v. Hoohing, 2007 ONCA 577; R. v. Wadforth (2009), 2009 ONCA 716 , 247 C.C.C.(3d) 466 at para. 67 (Ont. C.A.).

[63] I would dismiss this last ground and consequently dismiss the appeal from the conviction. APPEAL FROM THE SENTENCE [64] The appellant sought an absolute discharge, which the judge denied, but the appellant alleges the judge erred in requiringevidence that the conviction would have an impact on his employment. The appellant also alleges that the judge unduly emphasized theobjectives of general denunciation and deterrence. [65] Two remarks are in order. First, the appeal record is light on documentation. The submissions of the parties at trial were notreproduced in the record.

A single exhibit is on record: a table of sentences for comparable offences. It therefore becomes difficult toquestion the judgment on appeal. [66] As stated, the appellant sought an absolute discharge.

The prosecution suggested a $20,000 fine. [67] Claude Bédard and Stéphane Grant, who, like the appellant, were territory supervisors for Irving, were condemned to fines of$15,000 and $10,000, respectively. [68] In response to the appellant’s request for absolute discharge, the judge concluded that the difficulty or impossibility of enteringthe United States would not endanger the appellant’s livelihood, and that the harm he invoked was hypothetical, something the appellantmoreover does not deny.

In my opinion, this concession demonstrates on its face that there is no error because, without rising to the levelof certainty, there must be some basis for the impact (which will vary according to circumstances) of the conviction: R. v. Denis, 2015QCCA 300 at para. 7; R. v. Naimer, 2015 QCCA 1525 at para. 16; R. v. Ménard, 2013 QCCA 683 at para. 8.

This assessment is left tothe sentencing judge, and in this case the state of the record neither permits deeper analysis of the issue nor reveals any error. [69] As for the appellant’s criticism of the weight assigned to the factors of denunciation and deterrence, this taken alone is not anerror justifying the intervention of the Court: R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089 at para. 78.

There is nothing inthe record that would allow the judge’s analysis to be called into question. [70] I would therefore allow the application for leave to appeal from the sentence that was referred to the panel and dismiss theappeal. MARTIN VAUCLAIR, J.A. [translation] ANNEX 1.

Without admitting their own involvement, the accused admit the existence of a conspiracy between the other persons named in theindictment as well as persons as yet unknown, by which these persons combined or agreed or arranged together to fix the pump price ofregular gasoline in the markets of Sherbrooke and Magog, Quebec, between April 1, 2005, and May 29, 2006. 2. This conspiracy unduly prevented or lessened competition in the markets of Sherbrooke and Magog. 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 servicestations was initiated. (

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

c) The instigator of these attempts was generally Pierre Bourassa, representative of the company Global Fuels, which operated servicestations under the Olco banner. He would communicate with Céline Bouin, Carole Aubut, and Louise Bonami, employees of the pricecentre 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. 4. The Competition Bureau agents’ field observations of the posted prices at the various service stations in Sherbrooke and Magog are admitted (detailed table to be filed). 5. The identities of the accused are admitted.

Respectively, they occupied the following roles and had the power to set the pump price of gasoline: Martin Proulx : owner of the Dépanneur King Léger service station, located at 4205 King Street West, Sherbrooke, operating under the Pétro-Canada banner. Valérie Houde and Sylvie Fréchette : managed the Le Dépanneur Le Deauvillois service station located at 7209 Bourque Blvd., Sherbrooke, Quebec, operating under the Petro-Canada banner. Yves Gosselin : territory representative for the Irving Oil Company.

He gave instructions to the manager of the Accommodation Domon service station located at 2235 Route 220, Sherbrooke (St-Élie d’Orford sector), operating under the Irving banner, about the gasoline price that this service station should display. Linda Proulx : owner of the Dépanneur Magog Orford service station located at 1619 Rivière aux Cerises Road, Magog, operating under the Petro-Canada banner. Michel Lagrandeur : owner of the auto repair shop and service station C. Lagrandeur et Fils Inc . , located at 95 Sherbrooke Street, Magog, operating under the Shell banner. 6.

The prosecutor is exempted from showing that it has complied with the requirements of s. 189(5) of the Criminal Code and s. 30 of the Canada Evidence Act . Subject to objections based on relevance, the accused do not object to the admissibility into evidence of documents seized when the search warrants were carried out, private communications intercepted through electronic surveillance authorized under

part VI of the Criminal Code , or the transcripts of these communications. 7. The authenticity of the transcripts of the recordings of the private conversations intercepted is admitted, including the telephone numbers, dates, times, and identities of the persons having the conversations.