Competition Bureau opens consultation on revised immunity and leniency programs

Last month, the Competition Bureau issued its revised immunity and leniency programs for public consultation (open until June 29), an important development as it represents the culmination of a process that began in 2015.

An initial draft of the immunity program, published last fall, was subject to public consultation and the Bureau made further revisions which aim, among other things, to clarify the Bureau’s approach.

Background

The immunity and leniency programs’ purpose is to uncover and stop criminal anti-competitive activity prohibited by the Competition Act. In fact, the programs have been described as one of the Bureau’s best tools to deter and stop criminal anti-competitive agreements.

The Bureau is responsible for investigating wrongdoing and recommending immunity and leniency to the Public Prosecution Service of Canada (PPSC). PPSC is then responsible for deciding if charges should proceed and who should be charged. The decision to grant immunity or leniency ultimately rests with PPSC counsel.

Immunity and leniency are extraordinary grants. The Crown can effectively forego prosecution or allow recommended sanctions to be reduced. The rationale for doing so lies in the public interest: offering immunity from prosecution can help the Bureau and PPSC with their investigations and prosecutions of other offenders participating in serious criminal activity.

The proposed changes

One of the main changes to the immunity program is the proposed increase to the number of steps required to obtain immunity. Currently, there are three steps: (1) marker, (2) proffer and (3) immunity agreement.

An additional stage is being proposed by the revised draft immunity program as a new third step – the interim grant of immunity, which is intended to facilitate faster access to documents and witnesses. This step was proposed in the initial 2017 public consultation, but came with concerns it would introduce uncertainties to the process, notably lengthening the timeline to finalize an immunity agreement.

Another change affects the proffer process. Usually, immunity applicants provide proffers verbally. Notes are taken, but no audio, video, or transcript recordings are made, minimizing the creation of records that could be subject to disclosure. The initial 2017 public consultation contemplated audio recordings, but did not refer to a paperless process. The revised version would permit a paperless process and it indicates subsequent witness interviews following the immunity grant may be recorded, while also addressing certain concerns brought forward.

A third change to the immunity program deals with privilege claims. The 2018 revised version does not contain the same regime as the initial 2017 public consultation, which had a detailed protocol for privilege claims and due process concerns. It now provides for an independent council to be used when agreed upon by the parties to resolve a disagreement regarding privilege.

The leniency program has also seen some changes since 2017. The 2018 revised version states that every leniency applicant may be entitled to (1) a cooperation credit of up to 50% and (2) an additional 10-20% credit for having an effective corporate compliance program in place. These credits would reduce the fine the party may otherwise face for committing a criminal offence under the Act.