Criminal conspiracy enforcement trends under Section 45 of the Competition Act

Nearly sixteen years ago, on March 12, 2009, the Canadian government enacted significant amendments to the Competition Act (the “Act”) as part of Bill C-10, the Budget Implementation Act, 2009 (“Bill C-10”). The Act's amendments came into force one year later on March 12, 2010 and transformed the Act’s conspiracy provisions by creating a “two-track regime”—a civil track,¹ and a criminal track.

The amendments created a “per se” criminal conspiracy offence for “hard-core” cartels under section 45 of the Act, which criminalized conspiracies, agreements, or arrangements to fix prices, allocate sales, or restrict output. Prior to the amendments, the competitive effects test required proving (i) that a challenged agreement under section 45 prevented or lessened competition “unduly” and (ii) that both objective and subjective intent elements were satisfied. The amendments dispensed with the need to prove any anti-competitive effects on the market; in theory, by no longer requiring the competitive effects test, there would be a “more effective criminal enforcement regime” where it would be easier to enforce “the most egregious forms of cartel agreements.”²

But has the new section 45 and its per se regime produced more effective enforcement and more guilty pleas or convictions for criminal conspiracy as predicted? Not so far. Analysis of the conspiracy convictions secured since 2010 indicate that all but one case involved conduct that pre-dated (either in part or in full) Bill C-10, resulting in charges laid either entirely under the old section 45 or under both the old and new section 45. In other words, at most, the amendments to section 45 have produced convictions in one case in 15 years. Here are the statistics:

• Between January 2014³ and March 2025, the Bureau disclosed twenty-three cartel cases, which resulted in at least fifty-two criminal convictions. Of these convictions, approximately forty-three were for bid-rigging under section 47 of the Act and not conspiracy convictions under section 45.
• Of the remaining cases, only a handful involved price-fixing or other criminal conspiracies. Only a single case—a conspiracy to divide refurbishment contracts for social housing in Manitoba—involved conduct that commenced entirely after Bill C-10 was enacted and charges laid entirely under the new section 45.
• In all other conspiracy cases, the Bill C-10 amendments were entirely or largely inconsequential as conviction would have been secured under the old section 45 regardless.

Case	Type of Offence	Time Frame of Conspiracy	Section 45 Applicable (i.e., Old, Mixed Old, and New, or New)	Penalty
Thirty-nine individuals and sixteen companies involved in Québec’s retail gasoline industry	Price-fixing	Early 2004—Mid-2006	Mixed Old and New	$4.124 million in cumulative fines
Hershey Canada Inc.	Price-fixing	2007	Old	$4 million in fines
Overseas Container Forwarding, Inc.	Price-fixing	January 2005—March 2011	Mixed Old and New	$675,000 in fines
ECU Line Canada Inc.	Price-fixing	January 2005—March 2011	Mixed Old and New	$1 million in fines
Canada Bread Company, Limited	Price-fixing	2007, 2011	Mixed Old and New	$50 million in fines
Nippon Yusen Kabushiki Kaisha and Kawasaki Kisen Kaisha, Ltd.	Other Conspiracy	2008	Old	$1.96 million in cumulative fines
Five Manitoban contractors of conspiracy to divide social housing refurbishment contracts	Other Conspiracy	December 2011—February 2016	New	$196,000 in cumulative fines

What does this tell us about the effect of Bill C-10 and its amendments to section 45? First, that new section 45 has not led to more convictions or enforcement activity. While there is an obvious lag between when the conduct occurs and when the Bureau secures convictions, one conviction under new section 45 in 15 years cannot be described as an “increase” in convictions relative to convictions that could have been secured even without Bill C-10. Second, it would appear that the old section 45 was reasonably fit for the purpose of capturing the horizontal hard-core cartel conduct that new section 45 was explicitly designed to capture.

These observations suggest that the main benefit in narrowing section 45 has not been that the Bureau has secured more convictions, but that businesses have greater certainty about the line between lawful and unlawful conduct than was possible under old section 45. This goes directly to the other main driver behind the amendments to section 45: that old section 45 chilled too much pro-competitive conduct because businesses feared that their vertical agreements or non-cartel horizontal agreements might nevertheless be considered to unduly lessen competition unlawfully under old section 45. Whether such a benefit has actually materialized and produced positive economic outcomes is beyond the scope of this blog but is a valuable topic for discussion and further examination.

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Emrys Davis is a partner and Mercy Liu is an associate with Bennett Jones

End Notes