On May 26, 2015 NDP MP Annick Papillon introduced Bill C-681: An Act to Amend the Competition Act (Competition Prosecution Service). The timing of the Bill is interesting.  It follows on the heels of a major 8 month criminal bid-rigging trial (R. v. Durward, TPG, et al.). In that case, the jury rejected the Crown’s case in its entirety, and found all accused, on all 60 counts, not guilty.

As drafted, the purpose of Bill C-681 is to change the Competition Act by creating a new prosecution service for competition offences. The head of the new service would be the Director of the Competition Prosecution Services, who would be appointed by and report directly to the Attorney General of Canada.

A Departure from Existing Practice

The proposed law would be a significant change from the present manner of prosecuting Competition Act offences. Currently, competition-related offences are investigated by the Competition Bureau and prosecuted by the Public Prosecution Service of Canada (PPSC). A unit within the PPSC typically handles Competition Act offences. That team has experience in handling these kinds of cases and has access to the broader resources of the PPSC, such as input from other experienced lawyers, technical support and legal research.

The PPSC does not exclusively prosecute competition-related offences. The PPSC prosecutes many unrelated federal offences including cases involving narcotics, tax evasion, terrorism and electoral fraud. Unlike the PPSC, the Competition Prosecution Service would focus solely on competition-related offences.

In many cases, charges under the Competition Act are combined with other charges under the Criminal Code of Canada, in particular conspiracy. It is not entirely clear whether the new service would handle, or could handle, such combined charges.

Highlights of the Bill

As proposed in the new Bill, the Director of the Competition Prosecution Services would be responsible for prosecuting criminal offences under the Competition Act, including: bid-rigging, price fixing, and conspiracy. In addition to conducting prosecutions, the Director would also have the ability to initiate prosecutions. Additional powers of the Director include:

  1. Issuing guidelines regarding competition-related offences;
  2. Communicating with media about competition-related offences;
  3. Communicating with law enforcement about competition-related offences (including the initiation of new investigations), and;
  4. Tabling annual parliamentary reports about competition-related offences.

Reasons for the Bill

According to the Bill’s sponsor (Ms. Papillon), the purpose of Bill C-681 is to more quickly prosecute competition-related offences. Ms. Papillon stated in the House of Commons: “Unfortunately, bid rigging and price fixing remain common crimes in Canada, and Canadians expect the offenders to be punished quickly. My bill will help accelerate the legal process…” (May 26, 2015: Hansard).

On one point, being the need to accelerate the legal process in such cases, Ms. Papillon is correct. In the recent R. v. Durward case, the time from investigation to verdict was 10 years.  Almost half of that time was spent investigating the case, and the other half prosecuting it. However, it is unclear how the creation of a new service will speed up the process. Logic suggests the process may be slower because the new service will have considerably fewer resources than the PPSC.

Based on Ms. Papillon’s statement in the House, the motivation behind the Bill seems to be that the NDP sees anti-competitive behaviour among Canadian business people to be “common,” and intends to take action. Other than perception, perhaps coloured by the recent experience in Montreal arising out of the Charbonneau inquiry, there does not appear to be any evidence to back up this position.  Furthermore, given the sharp rebuke by the jury to the prosecution in R. v. Durward, it does not appear that the Bureau or the PPSC can be criticized for being too lax in their pursuit of competition offences.

The Bill may instead provide a glimpse into the policies of the NDP in the area of competition law, should they form or be part of the next government. It appears that the NDP would take an even more aggressive approach to the pursuit of Competition Act offences.

Status of Bill

It does not appear that the Bill enjoys the current government’s support, is sponsored by the Bureau, or has any prospect of being passed. Generally, private member Bills of opposition MPs do not get passed into law.

Parliament has not debated or voted on Bill C-681.