This article is an extract from the 5th edition of Government Procurement.
In its May 2020 decision in R. v. Charpentier, the Ontario Superior Court of Justice found the defendant not guilty of fraud in his role in a bid-rigging kickback scheme that involved government projects. The defendant admitted that he colluded with his employer, who owned a construction company, in an ongoing bid-rigging and price-fixing scheme involving other bidders vying for work on Ontario Ministry of Transportation construction projects. The defendant also admitted that he then colluded with a subcontractor on 43 of those projects to receive inflated sub-tenders, awarding $6.5 million in work to that subcontractor at inflated prices, and then received kickbacks exceeding $3.2 million from that same subcontractor. However, the court dismissed the fraud charges because the Crown failed to prove that the defendant’s employer suffered “deprivation”, as required to prove the offence. The court ruled that the evidence did not clearly establish whether the employer was a victim and suffered financially from the kickback scheme, or whether the employer was an accomplice who benefited from the kickbacks by sharing in the illegal proceeds. Since there was reasonable doubt over the ultimate destination of the kickbacks, the “deprivation” element of the offence was not proven, and the charges were dismissed.
