On October 10, 2007, the Competition Bureau released a revised Information Bulletin on the Immunity Program Under the Competition Act, along with revised Responses to Frequently Asked Questions. The two documents should be read together in order to understand the Bureau's approach to recommending immunity. The new Bulletin and FAQs replace previous versions published in 2000.
The Immunity Program is an important enforcement tool, which encourages disclosure of criminal offences under the Competition Act. It is especially important in cases where the prohibited activity may be difficult to detect, such as participation in cartels. Like immunity programs in other jurisdictions, Canada's Immunity Program provides protection against Competition Act prosecution for the first person to disclose or provide information relating to an offence where the Bureau has been unaware of the offence or where there has been insufficient evidence to refer the matter to the Director of Public Prosecutions.
The Bulletin differs from the original published in 2000 in several respects. Procedurally, the most notable change is the elimination of the provisional guarantee of immunity (the PGI), which reduces the process to a single immunity agreement. Previously, the immunity program involved two agreements: 1) a PGI that would require the applicant to provide full disclosure of information and continuous cooperation, and 2) a final immunity agreement to be entered into when the Bureau was satisfied with the extent of the applicant's cooperation. In practice, however, a PGI was typically the only document issued and was effectively the final agreement. Although the Bulletin eliminates the PGI, the new single immunity agreement is conditional on the applicant's compliance. The single-agreement approach is consistent with immunity programs in other jurisdictions, such as the European Union and the United States.
The most notable substantive change is in respect of eligibility. Under the old program, "the instigator or leader of the illegal activity, [or] the sole beneficiary of the activity in Canada" was ineligible to receive immunity. The Bulletin now replaces the former "instigator/leader" test with a "coercion" test. Under the new coercion test, the Bureau will only disqualify an applicant where there is evidence that the applicant clearly coerced others to be party to the illegal activity. The Bulletin also limits the disqualification of a sole beneficiary to cases where the applicant is the only party involved in the offence (e.g., price maintenance). Thus, in a cartel case, the sole beneficiary test does not apply.
The Bulletin also clarifies confidentiality protection for applicants. While indicating that the Bureau will in most cases keep the identity of the applicant confidential, the Bulletin makes clear that there are circumstances in which the Bureau will disclose the identity of the party. An example of such a circumstance is where it is necessary in order to obtain or maintain the validity of a judicial authorization for the exercise of investigative powers (e.g., in obtaining a search warrant or production order).
Other changes introduced in the new Bulletin and FAQs include, among other things:
- improved guidance on the Immunity Program process;
- elimination of the requirement to make restitution; indication that the failure to disclose other offences will only result in revocation of immunity if the non-disclosure was intentional; and
- creation of a formal leniency program to provide incentives for other parties to the offence to cooperate with the investigation and prosecution, even if they are not eligible for immunity.
Overall, the Bulletin introduces welcome changes and brings Canada's immunity program into better alignment with similar programs in other jurisdictions.