The joining of bid rigging and conspiracy charges has questionable utility.
Offences Defined
The definitions of the offence of bid rigging in s. 47(1)(b) of the Competition Act is defined in part as the submission of a bid or tender which is arrived at by arrangement or agreement. A criminal conspiracy in s. 465(3) of the Criminal Code consists of an agreement to commit an indictable offence.
Coupling Charges
The Competition Bureau routinely joins a charge of bid rigging with a charge of conspiracy to commit the same offence of bid rigging on the same indictment. The reason for this is not clear beyond the usual tendency of prosecutorial authorities to load up as many charges as the facts will bear. The res judicata principle prevents convictions on both charges. There is, however, one utilitarian explanation – where both corporations and individuals are charged. Once one of several co-accuseds elects trial by judge and jury, the Criminal Code requires a jury trial for all. That could necessitate two separate trials. The bid rigging charges against the corporations would have to be severed from the indictment since the Competition Act s. 67(4) prohibits jury trials for corporations. Leaving aside the issue of the constitutionality of that provision (which does not appear to have been challenged), charging both offences gives the Crown options. In the event of a jury election they can continue with one trial by dropping the bid rigging charge against the corporations and proceeding against them on the conspiracy charge based on the same facts.
Problem with Conspiracy
As noted, the essence of criminal conspiracy is the agreement to commit the alleged offence. Where the allegation of bid rigging is as defined in s. 47(1)(b), an essential element of the offence is the agreement to rig bids. Criminal conspiracy is an inchoate offence in that it does not require the actual commission of any particular act beyond the agreement itself. Another inchoate offence is criminal attempt. The Supreme Court has held in R v Dery that inchoate offences cannot be combined such that there cannot be a conspiracy to attempt to commit an offence. The charge of conspiracy to commit s. 47(1)(b) bid rigging alleges an agreement to submit a bid arrived at by agreement. It is at least open to argument that a charge of conspiracy to commit that form of bid rigging constitutes the combination of two inchoate offences (a conspiracy to commit a conspiracy) and is therefore illegal. If that is so, the joining of bid rigging and conspiracy to bid rig against individuals and corporations on the same indictment will not solve the problem of duplicate trials. However, a counter argument could be made that the offence of bid rigging is not an inchoate offence since the actus reus of the offence is the submission of the bid. Not the agreement. In this argument, the conspiracy would simply be an included offence in the bid rigging charge.
