July 4, 2010
In a recent speech by Canada’s new Commissioner of Competition to the Canadian Bar Association’s Spring Conference, the Commissioner outlined some of the Competition Bureau’s current enforcement and policy priorities following Canada’s recent competition law amendments.
The Commissioner’s remarks included a number of comments regarding the Bureau’s enforcement policy in relation to the new criminal conspiracy rules, enforcement priorities, the Bureau’s new sentencing and leniency policies and, of particular note, indicating a tougher enforcement stance against cartels, including seeking increased penalties against individuals.
Some highlights of the Commissioner’s speech include:
Canada’s New Conspiracy Law. Canada’s newper se criminal conspiracy rules, which no longer require any adverse market effects in order to establish an offence, would be reserved for “hard-core” restraints (e.g., bare price-fixing, market allocation and output restriction agreements between actual or potential competitors). This is welcome news for Canadian businesses and consistent with other recent statements made by the Bureau, including in its recent Competitor Collaboration Guidelines (2010).
Bureau Enforcement Priorities. The Commissioner confirmed that “attacking cartels remains a top priority for the Bureau” and also stated: “we will not hesitate to refer cases to the [Public Prosecution Service of Canada] when evidence establishes a violation of the law. Potential violators need to be aware that the Bureau will enforce the Competition Act and legitimate businesses should rest assured that those who seek to reduce or restrict competition in Canada will be held to account.” While the Commissioner’s remarks that cartels remained a priority are largely consistent with recent past statements of Bureau officials, it is thought by some that the new Commissioner may in practice be more likely than her predecessor to be tougher on enforcement. On the other hand, the new Commissioner has also recently won recent praise from the business community for a more balanced approach so far to the application of Canada’s competition rules.
New Sentencing and Leniency Policies. The Commissioner described the Bureau’s efforts to refine its Sentencing and Leniency Bulletin, indicating that a final version would be issued “in the near future”. The Commissioner also confirmed that the Bureau regarded its immunity and leniency programs as important tools for the detection and enforcement of cartels.
Tougher Stance Against Criminal Cartels. Perhaps the most noteworthy comments by the Commissioner in her recent remarks is the suggestion that the Bureau wants to take a tougher stance against illegal cartels and, in particular, that it would increasingly be seeking penalties (including imprisonment) against individuals: “… while corporate fines used to be the norm in terms of sanctions in cartel cases, the Bureau has increasingly been recommending to the PPSC prison sentences for individual conspirators” and that to achieve deterrence it would “continue to hold individuals accountable”.
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