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Immunity and Leniency Programs Under the Competition Act PDF , 0.59 MB , 72 Pages This publication is not a legal document. It is intended to provide general information and is provided for convenience. To learn more, please refer to the full text of the Acts or contact the Competition Bureau. For information on the Competition Bureau’s activities, please contact: Information Centre Competition Bureau 50 Victoria Street Gatineau QC K1A 0C9 Telephone: 819-997-4282 Telephone (toll-free in Canada): 1-800-348-5358 TTY (for hearing impaired): 1-866-694-8389 Fax: 819-997-0324 Website: www.competitionbureau.gc.ca This publication can be made available in alternative formats upon request. Contact the Competition Bureau’s Information Centre at the numbers listed above. This publication is also available online in HTML at: https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04391.html Permission to reproduce Except as otherwise specifically noted, the information in this publication may be reproduced, in part or in whole and by any means, without charge or further permission from the Competition Bureau, provided that due diligence is exercised in ensuring the accuracy of the information reproduced; that the Competition Bureau is identified as the source institution; and that the reproduction is not represented as an official version of the information reproduced or as having been made in affiliation with, or with the endorsement of, the Competition Bureau. For permission to reproduce the information in this publication for commercial purposes, please fill out the Application for Crown Copyright Clearance at www.ic.gc.ca/copyright-request or contact the ISED Citizen Services Centre mentioned below. ISED Citizen Services Centre Innovation, Science and Economic Development Canada C.D. Howe Building 235 Queen Street Ottawa, ON K1A 0H5 Canada Telephone (toll-free in Canada): 1-800-328-6189 Telephone (international): 613-954-5031 TTY (for hearing impaired): 1-866-694-8389 Business hours: 8:30 a.m. to 5:00 p.m. (Eastern Time) Email: [email protected] © Her Majesty the Queen in Right of Canada, as represented by the Minister of Industry, 2019. Cat. No. Iu54-71/2020E-PDF ISBN 978-0-660-34784-4 Date: 2019-03-15 Aussi offert en français sous le titre Programmes d’immunité et de clémence en vertu de la Loi sur la concurrence. Table of contents Preface ............................................................................................................................ 5 Introduction ...................................................................................................................... 6 Roles of the Commissioner, the Director of Public Prosecutions and the courts ......... 7 Part one: The Immunity Program ..................................................................................... 9 Obtaining immunity ...................................................................................................... 9 Timing and required information .................................................................................. 9 Eligibility ................................................................................................................. 10 Subsequent to the immunity application ................................................................ 11 Cooperation required ............................................................................................. 12 Impact of corporate immunity on directors, officers, employees and agents .............. 14 Obtaining the cooperation of directors, officers, employees and agents ................ 15 The immunity process ................................................................................................ 15 Step 1: Initial contact (the marker request) ............................................................ 16 Step 2: Proffer ........................................................................................................ 17 Step 3: Grant of Interim Immunity: Full disclosure and cooperation ....................... 20 Step 4: Final grant of immunity .............................................................................. 23 Failure to comply with the obligations of the Grant of Interim Immunity ..................... 24 Part two: The Leniency Program ................................................................................... 25 Obtaining leniency ..................................................................................................... 25 Timing .................................................................................................................... 25 Eligibility ................................................................................................................. 26 Subsequent to the leniency application .................................................................. 26 Cooperation required ............................................................................................. 26 Leniency in sentencing: Determining the recommended fine ..................................... 27 The base fine ......................................................................................................... 27 Aggravating and mitigating factors ......................................................................... 29 Credit for credible and effective corporate compliance programs .......................... 29 3 Immunity and Leniency Programs under the Competition Act The Leniency Cooperation Credit (the LCC) .......................................................... 30 Immunity Plus, evidence of a broader conspiracy and other considerations .......... 30 Impact of leniency on directors, officers, employees and agents ............................... 31 The leniency process ................................................................................................. 32 Step 1: Initial contact (the marker request) ............................................................ 33 Step 2: Proffer and limited disclosure .................................................................... 34 Step 3: The leniency recommendation ................................................................... 36 Step 4: The plea agreement................................................................................... 36 Step 5: Full disclosure ............................................................................................ 38 Step 6: Court proceedings: Entering the plea ........................................................ 39 Step 7: Ongoing cooperation and testimony .......................................................... 39 Cancellation of leniency marker and withdrawal from the leniency program .............. 40 Legal privilege ............................................................................................................ 40 Part three: Matters common to the Immunity and Leniency Programs .......................... 41 Status of witnesses .................................................................................................... 41 Treatment of information ............................................................................................ 41 Confidentiality ........................................................................................................ 41 International criminal anti-competitive activity ........................................................ 43 Private (civil) actions .............................................................................................. 43 Appendix 1: Criminal provisions of the Competition Act ................................................ 44 Appendix 2: Information checklist .................................................................................. 47 Appendix 3: Template documents ................................................................................. 50 Company – Model letter – Grant of Interim Immunity (GII) ........................................ 50 Company – Model GII agreement .............................................................................. 53 Employee – Model letter – Confirmation of coverage from company GII ................... 60 Individual – Model letter – GII .................................................................................... 63 Individual – Model GII Agreement .............................................................................. 66 4 Immunity and Leniency Programs under the Competition Act Preface The purpose of the Immunity and Leniency Programs (Programs) is to uncover and stop criminal anti-competitive activity prohibited by the Competition Act (Act)1 and to deter others from engaging in similar behaviour. The Programs are administered jointly by the Director of Public Prosecutions (DPP) and the Commissioner of Competition (Commissioner). Under the Programs, the Competition Bureau (Bureau), headed by the Commissioner, is responsible for investigating alleged wrongdoing and making recommendations to the Public Prosecution Service of Canada (PPSC) to grant immunity and leniency. The PPSC, under the direction of the DPP, is responsible for the decision to enter into an immunity or plea agreement with an applicant in accordance with the principles set out in the Public Prosecution Service of Canada Deskbook2 (PPSC Deskbook). These responsibilities are discharged by the Bureau and the PPSC, in mutual recognition of the other's independence. Immunity is an extraordinary grant by the Crown to forego prosecution, while leniency is a discretionary decision by the Crown to recommend a reduction of the sanctions to be imposed by
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