Competitor Agreements: Interpreting Criminal Conspiracy In A Blended Criminal-Civil Regime

I. Introduction

Parliament enacted Canada's first antitrust statute in 1889,² one year before the U.S. Congress passed the Sherman Act.³ The 1889 drafters roundly condemned collusive behaviour as "a crying and growing evil", "iniquitous", "pernicious", and "illegitimate".⁴ They feared the large American trusts and recognized that Canada's protective tariff made certain industries particularly vulnerable to anticompetitive behaviour. But unlike their American counterparts, they did not criminalize all agreements in restraint of trade. As a result,Canada's antitrust laws were shaped by an economic threshold: an agreement's undue effect on competition.

One hundred and twenty years passed before Canada adopted the bifurcated per se and rule of reason approach to agreements in restraint of trade that American jurists had fashioned out of the Sherman Act's stark prohibition.⁵ The March 2010 amendments to section 45 of the Competition Act⁶and the introduction of