In remarks delivered to the Canadian Bar Association, Commissioner of Competition John Pecman (then interim Commissioner) announced a new whistleblowing program developed by the Competition Bureau’s Criminal Matters Branch. The Criminal Cartel Whistleblowing Initiative will encourage members of the public to provide information to the Competition Bureau regarding possible violations of sections 45 to 49 of the Competition Act, i.e., the criminal cartel provisions which prohibit, among other things, agreements or arrangements among competitors to fix prices, allocate markets, restrict output or rig bids.
The Competition Act and the Criminal Code already provide for a variety of protections to whistleblowers. The Competition Act provides that any person who has reasonable grounds to believe that a person has committed (or intends to commit) an offence under the Act may notify the Commissioner of the particulars of the matter and may request that his or her identity be kept confidential with respect to the notification. The Competition Act also bars retaliation by employers against whistleblowers who act in good faith and on the basis of reasonable belief. The Criminal Code contains broader protections for whistleblowers who provide (or intend to provide) information to anyone responsible for law enforcement with respect to any kind of offence (under any federal or provincial act or regulation) committed by someone in their organization (including directors and officers and other employees).
The Competition Bureau’s new whistleblowing initiative augments these provisions by highlighting the Bureau’s particular interest in receiving information about possible violations of the criminal cartel provisions of the Competition Act, and by introducing a toll-free telephone number for the Bureau’s Information Centre for that purpose (tel.: 1-800-348-5358; TDD for the hearing impaired: 1-800-642-3844; fax: 1-819-997-0324).
In describing the program, the Bureau notes how information that is reported can be used by the Bureau, explaining (for example) that it may be communicated to a Canadian law enforcement agency and may also be communicated for the purposes of administration or enforcement of the Act – with the caveat that the Bureau will ensure that any information provided by a whistleblower that is communicated in these circumstances does not reveal the identity of the whistleblower. The Bureau also notes that, depending on the circumstances, a whistleblower may be asked (but will not be required) to testify in court. (Issues regarding the interplay between the assurances provided by the Bureau and the Charter rights of an accused are not addressed in the program.)
Finally, the Bureau stresses that how much personal information the whistleblower provides is a matter of his or her own discretion, while noting that it may be impossible for the Bureau to act on the information provided (or in some situations, to protect the whistleblower’s identity) unless sufficient personal information is offered with the complaint.
In recent years, the Bureau has emphasized the effectiveness of its Immunity and Leniency programs, although some commentators have questioned whether the Bureau can develop stronger incentives to companies to self-report. The Commissioner has framed the new whistleblowing initiative in similar terms. In announcing the program, the Commissioner characterized it as an effort to “support increased reporting of anti-competitive behaviour, while ensuring the protection of individuals who come forward with such information”.