Valerie Chénard

In this criminal jury trial ruling, the accused sought to have the defence of mistake of fact put to the jury on bid-rigging charges under s. 47(2) of the Competition Act.

The court held that whether the RFPs were calls for bids or tenders was a question of fact, not law, and applied the air of reality test to determine whether the defence should be left with the jury.

On the totality of the evidence, including uncertainty in the procurement documents and witness evidence, the court found an evidentiary foundation for an honest mistaken belief.

The jury was therefore permitted to consider the mistake of fact defence in relation to the nature of the RFPs.

On a mid-trial application for a directed verdict, a self-represented accused sought acquittal on bid-rigging and conspiracy counts arising from a multi-accused prosecution concerning a Transport Canada RFP.

Applying the directed verdict standard, the court held that the Crown's case against the moving party rested on thin direct evidence and circumstantial inferences that were not reasonably available on the whole of the record.

The evidence established only knowledge of and limited participation in his company's own joint venture proposal, which was not illegal.

There was no evidence capable of supporting membership in the larger alleged three-bid scheme or conspiracy.

A directed verdict of acquittal was entered on both counts.

In a criminal prosecution alleging bid-rigging and conspiracy arising from multiple federal government IT procurement processes, the Crown moved for a similar fact ruling permitting the jury to use evidence on one count across other counts against the same accused.

Applying the governing similar fact evidence framework, the court held that such evidence is presumptively inadmissible unless its probative value outweighs its prejudicial effect and it is sufficiently connected to a live issue.

The court found minimal moral prejudice because the jury had already heard the impugned evidence, but concluded that significant differences among the three groups of procurements reduced the probative value of using the evidence across all procurements.

The motion was therefore granted only in part, limited to the CBSA RFPs and subject to further submissions after the defence evidence.

Multiple applicants charged with bid‑rigging under s. 47(2) of the Competition Act and conspiracy under s. 465(1)(c) of the Criminal Code sought certiorari to quash their committal for trial following a preliminary inquiry.

They argued that the government Requests for Proposals used to procure information technology services merely created standing offers or pre‑qualification lists and therefore could not constitute “calls for bids or tenders” within the meaning of the Competition Act.

The court reviewed the Contract A/Contract B tendering framework and relevant procurement jurisprudence, emphasizing that the existence of a bidding contract depends on the parties’ intention to create binding rights and obligations.

It held that there was some evidence from which a trier of fact could conclude that the RFP process created contractual relations sufficient to constitute bids or tenders, even though the government retained discretion not to award work.

The application to quash the committal was therefore dismissed.