On October 26, 2017, Canada’s Competition Bureau (Bureau) released for comment a revised version of its Immunity Program, under which a party may receive immunity from prosecution from the Director of Public Prosecutions (Crown) if the party is the first to disclose an offence not yet detected by the Bureau or is the first to come forward before the Bureau has gathered sufficient evidence to warrant a referral of the matter to the Crown.
In announcing the proposed revisions, the Bureau emphasized a shift towards greater transparency and predictability in the application of Canada’s competition laws. The Bureau has invited interested parties to provide their views on the proposed changes by no later than December 29, 2017.
The Bureau also has indicated there will be changes coming to its Leniency Program, but these have not yet been announced.
ENSURING CREDIBLE AND RELIABLE EVIDENCE AND ADDRESSING ISSUES OF PRIVILEGE
While the current program remains largely intact, it is the Bureau’s position that the proposed revisions will allow it and the Crown to better prepare for prosecution by requiring that credible and reliable evidence be provided early in the process. The key changes to the program are set out below.
Interim Grant of Immunity
Under the proposed revisions to the Immunity Program, applicants will initially only receive an interim grant of immunity (IGI) from the Crown, with full immunity to follow later in the process when the applicant’s cooperation and assistance is no longer required. Under the IGI, applicants will have ongoing cooperation and disclosure obligations. For example, applicants must provide proffered statements identifying material witnesses and describing their knowledge of, and involvement in, the relevant conduct and/or impact on the Canadian marketplace. Where the Bureau believes that the applicant has not met the IGI’s terms and conditions, the Bureau may make a recommendation to the Crown that it not enter into an immunity agreement with the applicant and that it revoke the IGI, if warranted.
Under the Bureau’s current Immunity Program, there is no interim step. Applicants can enter into an immunity agreement with the Crown (and receive full immunity) after the party has met the basic requirements of the Immunity Program, with the party having ongoing cooperation obligations to assist the Crown with its prosecution of other parties. The Bureau’s addition of this interim step to obtaining immunity appears to be aimed at ensuring the Bureau and Crown receive from the applicant the prompt and sufficient cooperation needed for the prosecution of others.
Corporate Immunity of Directors, Officers and Employees
Under the proposed revisions, all current directors, officers and employees of a company that has qualified for an immunity recommendation will be required to demonstrate their knowledge of the conduct in question and their willingness to cooperate with the Bureau’s investigation in order to receive the same recommendation of immunity. Automatic coverage for all directors, officers and employees will no longer be provided. The proposed revisions therefore ensure that an individual receiving an immunity recommendation from the Bureau will cooperate going forward and will be able to provide information regarding the conduct that is relevant to the prosecution of a matter.
Greater Use of Recordings
Under the Bureau’s Immunity Program, a party wishing to proceed with an immunity application is required to provide a detailed description of the illegal activity and disclose sufficient information for the Bureau to determine whether it can qualify for immunity. This is known as a “proffer” and is usually made in hypothetical terms by the applicant’s legal representative — it can be in oral or written form.
The Bureau’s proposed revisions require the provision of greater detail than in the past, such as with respect to the internal investigation by the applicant, and allow for the possibility that proffers may be audio recorded. As well, production of documents and/or witness interviews (conducted under oath and possibly video or audio recorded) may be requested by the Bureau prior to the Bureau recommending an IGI. The use of oaths and recordings is intended to provide the Bureau with greater assurance that it has an accurate record of the information provided by the applicant and witnesses under the Immunity Program.
Under the Bureau’s Immunity Program, an applicant is required to provide disclosure of all information, evidence and records that relate to the anti-competitive conduct for which immunity is sought. However, applicants are not required to disclose privileged records.
Under the proposed revisions to the Immunity Program, privileged records will continue to be protected from disclosure, but applicants will now be required to justify their claims of privilege. Within 30 days of the IGI being issued, applicants must advise the Bureau of the specific legal privilege being claimed and the nature of the records over which the privilege is being claimed. If there is a dispute as to whether privilege applies, an independent counsel will be appointed to review the records and render a decision, which the applicant will be required to accept. The addition of this step appears to be aimed at ensuring the Bureau and Crown are provided with access to all relevant records, but it could lead to disputes over claims of privilege.