Date: 20050302
Docket: T-276-05
Citation: 2005 FC 316
BETWEEN:
HER MAJESTY THE QUEEN
and
ROBERT J. HART
Accused
REASONS FOR SENTENCE
SNIDER J.
[1] The accused Mr. Robert J. Hart has pleaded guilty to one count of an indictable offence of breaching paragraph 45(1)(c) of the Competition Act, R.S.C. 1985, c. C-34, as amended (the Act).
[2] Pursuant to a plea of guilty and the agreed statement of facts, there will be a conviction registered. It is necessary to sentence to accused.
[3] Counsel for the parties presented an agreed statement of facts which was supplemented by oral submissions. They have suggested a fine of $50,000.
[4] On a conviction under section 45, the penalty provided is imprisonment for a term up to five years or a fine not exceeding $10,000,000 or to both. The sentence under the Act should protect the public interest in free competition and should serve as a general and specific deterrent.
[5] The Court relies on the following factors in deciding upon the sentence in this matter:
1. In this case, the relevant section is section 45, the conspiracy section, and it is at the core of the criminal portion of the Act.
2. The role of the accused is a factor. In this case, the accused was one of the directing minds of the corporate conspirators. Further, he was a conscious and voluntary participant in the conspiracy over a period of approximately five years.
3. The volume of commerce affected must be considered. In this case, the volume of commerce of high-power graphite electrodes affected by anti-competitive activities of the accused and others in the Canadian market was at least $400 million during the relevant periods.
4. Pursuant to subsection 734(2) of the Criminal Code, the Court must be satisfied with the accused's ability to pay the fine. As the fine is jointly proposed, the Court is satisfied of the accused's ability to pay.
[6] The mitigating factors are:
1. The accused has pleaded guilty to the offence and has saved the costs of further investigation and trial.
2. The accused has agreed to attorn to the jurisdiction of Canadian Courts, thereby avoiding extradition proceedings.
3. The accused has waived any jurisdictional objections he might have raised.
[7] Finally, the Court notes that the accused's superior was fined $ 70,000 for similar activities.
[8] Relying on these principles and factors and considering all of the evidence, the Act and the submissions of counsel, in the Court's view, the amount of the fine suggested by counsel is reasonable. The Court fines the accused $50,000 payable forthwith.
[9] The Court will endorse the indictment as follows:
Plea of guilty accepted and conviction entered. The accused is ordered to pay a fine in the amount of $50,000 forthwith.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-276-05
STYLE OF CAUSE: HER MAJESTY THE QUEEN
and
ROBERT J. HART
Accused
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 2, 2005
REASONS FOR SENTENCE BY: SNIDER J.
DATED: MARCH 2, 2005
APPEARANCES BY:
Lorne Ptack, Bradley Reitz FOR THE CROWN
David Kent FOR THE ACCUSED
SOLICITORS OF RECORD:
David Kent
Toronto, Ontario FOR THE ACCUSED
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE CROWN
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