The Meaning of "Collusion"

     The first time I encountered the word "collusion" in a formal, technical sense was in a family law class. We were talking about the legal history of divorce, and what used to be required to get one.
     Way back in the 16th Century, Henry VIII founded the Church of England in large part because the Catholic Church wouldn't annul his marriage to Catherine of Aragon, but that really didn't make divorce palatable to the lawmakers generally. In Ontario, you actually needed a private Act of Parliament to dissolve a marriage, right up until 1930. It wasn't until 1968 that the federal government passed the Divorce Act making divorce law uniform across Canada. Even then, you needed adequate "grounds for divorce"; you couldn't just both mutually decide you didn't want to be married anymore. And one of the grounds for divorce specified in the Act was adultery.
     But not just any old act of adultery would do. See, divorce was seen as a remedy to a wrong, which meant that you had to genuinely have been cheated upon, wronged by an act of infidelity that thereby made it impossible for you to remain married to that cheating scumbag. That meant that, for example, a couple that both agreed they wanted to split could not get around it by arranging for one of them to go have a one-night-stand. If you agree to it, you haven't been cheated on. And if you then represent to the court that OMG, your spouse cheated on you so can you please have a divorce, then you're in effect defrauding the court by claiming to have been hurt by something you actually wanted.

     Now, that's kind of a ridiculous way to structure the law on divorce, such that you can only get a divorce if one of you kinda still wants to stay married enough to be hurt by adultery, and the law was changed in 1986 so that you only needed to have a breakdown in the relationship as evidenced by living "separate and apart" for at least a year. (That still sounds like a lengthy delay, but in practice it need not be. I know of couples who simply moved to separate bedrooms in the same house, and that counted. What's more, since legal proceedings take some time, you don't actually have to have started living separate and apart for a full year when you file; it'll take several months at least to get before a judge, so by then it's usually been close to a year since you moved to separate bedrooms.)

     But collusion is still a thing. Black's Law Dictionary defines it thusly: "An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an  object forbidden by law." While it's no longer relevant to the law of divorce, it does still apply to other situations, most obviously insurance fraud.
     Consider this hypothetical example. We both have cars we don't really want anymore, and don't need to replace. Maybe we've already got other vehicles, or maybe we've decided to take the bus more often and just don't want to own cars anymore at all. Nobody's offering a good price to buy them from us, but we have pretty good collision coverage on our insurance policies, so we decide to stage a collision and write them off.
     If we stage it just right, it will look like one or both of us was negligent, and only guilty of breaking a few non-criminal traffic regulations, but if we don't intend to keep our licenses or insurance policies, we can stand to suffer a few demerits, and if the fine isn't too great the insurance payout may still be worth it. So we arrange to find an intersection where we're unlikely to cause greater harm or be observed by too many witnesses, and trusting to our seatbelts and airbags to prevent serious permanent injury, we deliberately smash our cars together just badly enough for them to be insurance write-offs.
     The damage to the vehicles and any resulting injuries are genuine. In damaging each other's cars, we have not committed torts against each other because we've both consented to this arrangement, and assuming our injuries are modest, the same argument applies to criminal or tortious assault. But for the fact that we both deliberately brought this about, there would be no legal obstacle to an insurance payout indemnifying us for our losses. Heck, even if only one of us had deliberately caused the accident, the other would still be entitled to compensation as the victim of an intentional tort. But in this scenario, we both intended for this to happen, and the fraudulent claim to this insurer is simply that we didn't have any agreement to do this, or in other words, that we did not collude.

     It's true that collusion itself is not a crime. There is no statute that expressly prohibits "collusion". But it's also true that there's no statute that expressly prohibits "punching someone in the face", either.  Whether punching someone in the face is a criminal act depends on other factors, particularly the absence of consent. (See Criminal Code of Canada, s.265(1).)

     So it's not especially helpful to point out that collusion isn't a crime. It depends on what you're colluding to do.  Colluding to obtain a divorce wasn't criminal; it just meant you didn't get your divorce decree if you were caught. Colluding to collect an insurance claim is insurance fraud, which often is a crime. But regardless of what you're colluding to do and whether it's technically criminal or not, collusion is inherently shady.