Conspiracy Law and Jurisprudence in Canada: Towards an Economic Approach

Conspiracy Law and Jurisprudence in Canada: Towards an Economic Approach Review of Industrial Organization 13: 153–176, 1998. 1998 Kluwer Academic Publishers. Printed in the Netherlands. Conspiracy Law and Jurisprudence in Canada: Towards an Economic Approach PATRICK HUGHES Competition Bureau, Industry Hull, Quebec, Canada MARGARET SANDERSON Competition Bureau, Industry Hull, Quebec, Canada I. Introduction The most significant development for Canadian conspiracy law in the last ten years is the Supreme Court of Canada’s decision on the constitutional validity of the conspiracy provisions of the Competition Act in Nova Scotia Pharmaceutical Society (“PANS”). While important, the specific amendments made to the law in 1986 are more modest in comparison to the effect of the jurisprudence. The PANS decision articulates an analytical economic framework which uses market power as a screen to determine the illegality of alleged conspiracies. The approach is in contrast to U.S. law and jurisprudence in that it lies somewhere between a per se and a full rule-of-reason analysis and is strictly pursuant to criminal jurisdiction. This approach has been criticized by commentators on several grounds. First, it has been argued that the lack of a per se violation may allow the most egregious offences, such as price-fixing, to proceed unfettered. Second, it has been observed that the lack Review of Industrial Organization Springer Journals

Conspiracy Law and Jurisprudence in Canada: Towards an Economic Approach

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Kluwer Academic Publishers
Copyright © 1998 by Kluwer Academic Publishers
Economics; Industrial Organization; Microeconomics
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