On November 20, 2012, amendments to the sentencing provisions of the Criminal Code, introduced by Bill C-10, the Safe Streets and Communities Act, entered into force. The Safe Streets Act received Royal Assent on March 13, 2012. It amends several statutes, including the Criminal Code, and removes the availability of conditional sentences for those convicted of conspiracy or bid-rigging offences under sections 45 and 47 of the Competition Act. Conditional sentences, which are sentences served in the community (i.e., house arrest), are available for offences that do not carry a minimum sentence and where the court imposes a sentence of less than two years.
As of November 20, the Safe Streets Act removed offences carrying a maximum sentence of 14 years or life imprisonment from eligibility for conditional sentences. Conspiracy and bid-rigging fall into this category with their 14-year maximum sentences, as of the 2009-10 amendments to the Competition Act. The amendments effectively curtail the discretion of sentencing judges and continue a trend, under the current Conservative government, of relying more heavily on custodial sentences for deterrence.
The unavailability of non-custodial, conditional sentences for conspiracy and bid-rigging convictions is a significant departure from historical sentences imposed in respect of those offences.1 The implications of this change remain to be seen. Although the Commissioner has stated that the Bureau will be "appropriately aggressive when dealing with individuals", jail terms will not be automatic and it is the Public Prosecution Service of Canada (PPSC) that decides, not only whether to lay charges, but the penalties to be sought.
It is also possible that Canadian judges will be reluctant to impose custodial sentences for antitrust convictions. According to the principles of sentencing contained in section 718.2 of the Criminal Code, offenders should not be deprived of liberty if less restrictive sanctions are appropriate, and courts are required to consider all available sanctions other than imprisonment that are reasonable in the circumstances. Judges may still impose two alternative types of non-custodial sentences: (i) fines; and (ii) suspended sentences and probation; but whether or not judges consider these types of punishment appropriate for "hard-core" cartel offences is questionable.
According to section 734 of the Criminal Code, a convicted person may be fined in addition to, or in lieu of, a term of imprisonment, so long as the court is satisfied that the offender is able to pay the fine. Even though fines have historically been a common form of punishment for these types of offences, the offender’s ability to pay the fine could increasingly become an issue if the court is required to impose higher fines in order to achieve effective deterrence, in lieu of jail time.
There is also an important distinction in principle between suspended sentences and probation on the one hand and conditional sentences on the other, which may not make the former an appropriate substitute for conditional sentences. Suspending the passing of a sentence and issuing a probation order is a type of punishment typically imposed by judges in cases that do not require a period of incarceration for deterrence or denunciation. It is also generally accepted that suspended sentences and probation are usually inappropriate in cases involving sophisticated criminality or very serious charges. The Supreme Court of Canada clearly stated in R. v. Proulx2that the purpose of probation is rehabilitation, whereas the purpose of a conditional sentence, while it is also ultimately aimed at rehabilitation, is punishment because a conditional sentence is a form of imprisonment. This distinction may pose difficulties for judges hesitant to impose a custodial sentence, but who nonetheless must take into account the seriousness of the offence, deterrence and denunciation when sentencing offenders of the conspiracy and bid-rigging provisions of the Competition Act.
To add to the uncertainty, judges could also be reluctant to convict an individual accused at trial in marginal cases knowing that, if convicted, the individual would be subject to a custodial sentence. In any event, creative sentencing by judges to avoid imposing custodial sentences could lead to more uncertainty and significantly affect the risk analysis undertaken by offenders and their counsel in deciding whether or not to plead guilty before trial.
Although guilty pleas and cooperation with enforcement authorities will continue to mitigate longer sentences, the threat of penitentiary terms may deter individuals from pleading guilty as quickly as has occurred in cases thus far. Without the potential for non-custodial sentences, individuals, their counsel and their employer's counsel may increasingly contest the criminal charges. The continued complexity of proving an agreement in conspiracy cases may encourage resistance. If this occurs, it remains to be seen whether the Competition Bureau, and ultimately the PPSC, would actually litigate an increasing number of conspiracy and bid-rigging charges, and would have the resources to do so.
In any event, the elimination of non-custodial conditional sentences coupled with the more severe sentences advocated by Chief Justice Crampton in Canada v. Maxzone Auto Parts (Canada) Corp.3 suggest that sentences for conspiracy convictions may rise and that more contested litigation may ensue.