September 29, 2010
Earlier today the Competition Bureau published its final Leniency Program Bulletin.
In issuing this fairly anticipated Bulletin, the Bureau stated:
“The Bulletin outlines the factors the Bureau considers when making sentencing recommendations to the Public Prosecution Service of Canada (PPSC) and the process for seeking a recommendation for a lenient sentence in criminal cartel cases. The relationship between and roles of the PPSC and the Bureau, including each organizations’ respective roles and responsibilities, are clearly outlined in the Memorandum of Understanding between the Commissioner of Competition and the Director of Public Prosecutions. The Bulletin is a result of extensive consultations carried out in 2008 and 2009 to solicit feedback on the development of the Bureau’s Leniency Program.
A transparent and predictable Leniency Program complements the Bureau’s Immunity Program. The Bureau recommends immunity from prosecution for the first person to approach the Bureau who admits involvement in an offence and meets the Program criteria. A recommendation for lenient treatment may be available for a company or individual who cooperates with the Bureau’s investigation and admits involvement, but is not first to approach the Bureau. Whether or not the Bureau recommends lenient treatment in sentencing is based on the timeliness of the applicant’s cooperation.”
The Bureau also reiterated that investigating cartels (i.e., price-fixing, market allocation and supply restriction agreements between competitors or potential competitors) remains a top priority:
“Investigating cartels is one of the Bureau’s top antitrust enforcement priorities. The Immunity and Leniency Programs are among the Bureau’s best weapons to combat these anti-competitive agreements.”
The Bureau has formal immunity and leniency programs, under which parties that may have been involved in illegal conduct under the Competition Act are able to seek full or partial immunity from prosecution for cooperating with the Bureau (and satisfying a number of other formal requirements under the Bureau’s immunity or leniency programs).
As a practical matter, both the Bureau’s immunity and leniency programs operate on a “first in” basis, and so it is critical that potential parties to criminal offences under the Competition Act be advised of their potential immunity or leniency rights (and the benefits and drawbacks of participating in either of the Bureau’s programs).
Under the Bureau’s immunity program, full immunity may be available where a person is the first to approach the Bureau with evidence of a previously unknown offence (or one for which the Bureau does not yet have sufficient evidence to warrant a referral for prosecution to the Director of Public Prosecutions). In addition, even where a person does not qualify for total immunity (e.g., they are not first in), it may still be possible to obtain partial immunity under the Bureau’s leniency program.
Early detection, therefore, can give an individual or corporation that may be facing significant potential liability under the Competition Act a significant advantage in mitigating risk and completely or partially avoiding penalties. For this reason, not surprisingly, the Bureau has stated on a number of occasions that its immunity and leniency programs are among its top tools in both detecting and investigating criminal cartels (i.e., price-fixing, market allocation and supply restriction agreements among competitors or potential competitors).
We will post more on the new Leniency Program Bulletin soon.
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