5.2 Competition Act

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

The Competition Act (Act)Footnote 1 is a law of general application that establishes basic principles for the conduct of business in Canada. The Act is designed to, among other objectives, maintain and encourage competition in Canada and provide consumers with competitive prices and product choices.

2. Policy Objective

This guideline sets out the main practices and policies of the Director of Public Prosecutions (DPP) with respect to competition law cases. A Memorandum of Understanding (MOU) has been established between the DPP and the Commissioner of Competition (Commissioner). The purpose of the MOU is to clarify the parties’ roles and responsibilities at the investigative and prosecution stages of a case under the Act.Footnote 2

3. Competition Law Prosecutors

The National Capital Regional Office (NCRO) includes a group of Crown counsel (the Competition Law Section (CLS) assigned to conduct prosecutions under the Act in the courts of all provinces and before the Federal Court.Footnote 3

When the Commissioner of Competition requires the services of a prosecutor under s. 21 of the Act or refers evidence to the Attorney General under s. 23, the Chief Federal Prosecutor (CFP) of the NCRO determines whether the case should be assigned to counsel in the NCRO or whether assistance should be sought from Crown counsel in another regional office of the Public Prosecution Service of Canada (PPSC) or from an agent having the appropriate delegation from the DPP.

When a competition law case is assigned to Crown counsel outside the NCR, the counsel should consult with the CFP or the Deputy CFP of the NCRO on any legal decision or issue that may arise in the course of the prosecution.

4. Role and Responsibilities of Crown Counsel in Competition Law Matters

The responsibilities of the CommissionerFootnote 4 include the investigation of suspected offences under the Act and the referral of evidence to the PPSC. In addition, the Commissioner makes recommendations to the PPSC on matters such as the granting of immunity and leniency, charges to be laid and the appropriate sanctions to be imposed following a conviction.

Crown counsel involved in competition law matters are responsible for providing prosecutorial advice, both general and specific, during an investigation. Under s. 23 of the Act, the Commissioner may remit evidence gathered in the course of an investigation to the PPSC with a request that a prosecution be commenced. The evidence is then assessed in accordance with the principles set out in the PPSC Deskbook guideline “2.3 Decision to Prosecute” for the purpose of determining whether a prosecution is warranted. When a prosecution is approved, Competition Bureau (Bureau) officers swear the information.

4.1. Consultation

In the regulatory prosecution context, “public interest” considerations include the objectives of the regulatory regime in question. Crown counsel should consult the Bureau in order to ascertain those objectives, especially as they relate to the matter being considered, and more particularly, with respect to charges to be laid and arguments to make before the court.Footnote 5 In this regard, see the PPSC Deskbook directive “1.3 Consultation within Government” in which the importance of consultation and communication is emphasized.

The goal of prosecutions under the Act is to promote compliance with the competition policy entrenched in the Act. Nevertheless, in light of the independence of the DPP, the Commissioner cannot dictate litigation positions to prosecutors or impose specific courses of action.Footnote 6

4.2. Role and responsibilities of Crown counsel prior to the laying of charges

Crown counsel may be called upon from the outset of an investigation to provide legal advice to help ensure that the investigative strategy, techniques and procedures are consistent with the rules of evidence and with the Canadian Charter of Rights and Freedoms. Counsel may also advise Bureau officers on the nature of the evidence required, the use of investigative powers and the sufficiency of evidence.

While Crown counsel may work closely with the investigative team, they must not act as officers themselves by, for example, taking part in searches, participating in the surveillance of suspects or conducting interviews of witnesses. However, in certain circumstances, Crown counsel may interview important witnesses before charges are laid, for example, in the context of the Bureau’s Immunity and Leniency Programs.

Crown counsel may also provide legal advice on Bureau policies and programs in the criminal field (for example, the Immunity Program) and on practice and advisory notes (for example, search and seizure, disclosure, immunity and plea agreements).

4.3. Role and responsibilities at the prosecution stage

Crown counsel are responsible for the approval and prosecution of charges under the Act and for the conduct of all plea and resolution discussions.

Upon the referral of evidence by the Bureau to the PPSC in accordance with s. 23 of the Act, counsel must exercise his or her discretion independently of the Bureau in determining whether or not the recommended prosecution meets the standards set out in the PPSC Deskbook.Footnote 7

4.4. Plea and resolution discussions

Crown counsel are responsible for conducting all plea and resolution discussions in accordance with the PPSC Deskbook guideline “3.7 Resolution Discussions”. Crown counsel will consult with Bureau officers regarding the terms of a proposed resolutionFootnote 8 and will brief Bureau officers on the terms and supporting rationale of a plea agreement.

4.5. Decision to appeal

In general, decisions as to whether to commence an appeal are made by the CFP of the NCRO after consultation with the Team Leader of the CLS, a representative from the regional office in the province where the appeal is to be commenced and, in matters with significant public interest or national importance, the Deputy DPP, Regulatory and Economic Prosecutions. Crown counsel who has made a recommendation for an appeal must wait to receive instructions from the CFP before commencing an appeal.

5. Immunity Agreement

In respect of serious criminal activity under the Act, it may be in the public interest to offer immunity from prosecution to persons willing to terminate their participation in the illegal conduct and fully cooperate with the Bureau and the PPSC.Footnote 9

Pursuant to the Bureau’s Immunity Program, persons or organizations with information concerning anticompetitive business practices such as bid-rigging and price fixing are encouraged to make disclosure to the Bureau.Footnote 10 Both organizations and individuals may request immunity. When an organization is granted immunity, the organization may also apply for immunity for its directors and employees, past or present, provided these individuals meet the criteria and commit to the same disclosure and cooperation requirements as the organization.

The decision to grant immunity rests solely with the Crown and, like all exercises of prosecutorial discretion, is made in the name of the DPP.Footnote 11

5.1. Process for granting immunity

Bureau officers conducting an investigation and approached by an applicant for immunity will formulate a recommendation to Crown counsel. This recommendation must set out in as much detail as possible all relevant considerations to enable counsel to exercise his or her discretion independently. When counsel agrees that immunity should be granted, he or she must obtain approval from the Team Leader of the CLS to enter into an immunity agreement, which sets out the terms by which the parties to the agreement will be bound.

To that end, Crown counsel should follow immunity agreement templates. These can be found in Appendices B (organization immunity) and C (individual immunity) of this guideline. Individuals covered by organization immunity (Appendix B) must sign a standard letter setting out the independent conditions for continuing or revoking the individual immunity coverage. An example of such a letter is provided in Appendix D. Any proposed deviation from these standard forms must be approved by the Team Leader of the CLS. Because an immunity agreement typically includes issues of interest to the Bureau, the relevant Deputy Commissioner of the Bureau should also be notified of any such deviations.Footnote 12

5.2. Cooperation and disclosure by the immunity applicant

When Crown counsel, on behalf of the DPP, grants immunity and the parties enter into an agreement to that effect, the applicant for immunity must confirm in writing, as soon as possible, the content of the representations it has made within the application process and disclose all pertinent facts and documents of which it has knowledge and/or possession. Cooperation on the part of the immunity applicant is crucial and must be given completely and promptly.

As part of this process, Bureau officers will usually interview all involved parties, including an organization’s senior executives or, if the immunity applicant is an individual, that person. Bureau officers may have to interview witnesses before an immunity agreement can be implemented. In such cases, Crown counsel will provide an assurance in writing that the statements made by these witnesses and the information or documents they provide cannot be used directly against them. An example of a letter covering such a situation is included in Appendix E.

5.3. Revoking immunity

Under the terms of an immunity agreement, immunity is contingent upon immunity applicants fulfilling their obligations. The agreement also provides that immunity may be revoked. Like the decision to grant immunity, the decision to revoke rests with the PPSC. However, Crown counsel should take into account any representations made by the Bureau in that regard.

In consultation with the Team Leader of the CLS, Crown counsel in such cases must evaluate whether it is advisable to revoke immunity by referring to the factors set out in section 9 of the PPSC Deskbook guideline “3.3 Immunity Agreements”. Factors identified as relevant to possible revocation include when an immunity applicant:

A final decision to revoke immunity must be approved by the CFP of the NCRO.

6. Plea Agreement Following a Recommendation of Leniency

The Bureau's Leniency Program complements the Immunity Program and aims at encouraging other participants in an illegal cartel to acknowledge their actions and cooperate with the Bureau and the PPSC. In such cases, the Bureau recommends to the PPSC that the applicant receive lenient treatment in sentencing following a guilty plea. As with all plea negotiations, openness and fairness are crucial to the effective operation of the Leniency Program.

6.1. Administration of the leniency program

Organizations or individuals may apply for leniency provided that they meet the criteria set out in the Leniency Program.

The Bureau’s recommendations of leniency to the PPSC must set out all relevant considerations to enable Crown counsel to exercise their discretion independently and with full knowledge of the facts. Only Crown counsel has the discretion to enter into and conduct discussions leading to a resolution of the case and sentencing.

6.2. Cooperation and disclosure by the leniency applicant

Under the Leniency Program, a plea and sentencing agreement entered into between the DPP and a leniency applicant sets the conditions under which the applicant will benefit from leniency in sentencing. The agreement specifies the obligation upon the candidate for leniency to provide full, frank, timely and truthful disclosure and cooperation during any related investigation and resulting prosecution.

Failure by a leniency applicant to fulfill its obligations could lead to any leniency granted being revoked. In such circumstances, Crown counsel, in consultation with the Team Leader of the CLS, should evaluate whether to revoke leniency by having regard to the factors set out in section 9 of the PPSC Deskbook guideline “3.3 Immunity Agreements”.

A final decision to revoke leniency must be approved by the CFP of the NCRO.

6.3. Plea and sentencing agreement

Generally speaking, plea and sentencing resolutionsFootnote 14 (including agreements pursuant to a leniency recommendation made by the Bureau under the Leniency Program) entered into with respect to an offence under the Act prior to charges being laid should be reduced to a written plea agreement in the form set out in Appendices F and G of this guideline.Footnote 15 The agreement must include a statement of facts admitted by the accused.

When charges have already been laid, Crown counsel may decide to proceed without a written plea agreement if no permanent obligation to cooperate will be imposed on the pleading party as part of the proposed resolution.

It is the responsibility of each Crown counsel to ensure that the standard plea agreement is used in every case where counsel proposes to enter into such an agreement, when a permanent obligation to cooperate as well as immunity arrangements will be provided for in the agreement. Any proposed deviation from the standard plea agreements must be approved by the Team Leader of the CLS.

7. Applications for Prohibition Orders under Section 34(2) of the Competition Act

Section 34(2) of the Competition Act permits a superior court of criminal jurisdiction to prohibit or prevent the commission of an offence under Part VI of that Act. The court may prohibit the “commission of the offence or the doing or continuation of any act or thing by that person or any other person constituting or directed toward the commission of the offence”. Before the prohibition order can be made proceedings must have been commenced.

7.1. Considerations

The following factors, among others, are relevant when deciding whether a case should be the subject of a prohibition order, a prosecution or a more informal action:

  1. any history of anti-competitive or other relevant behaviour by the respondent company, its principals or any associated company;
  2. the seriousness of the conduct, including:
    1. whether a prior order or undertaking has been contravened;
    2. the apparent effect of the conduct on consumers, competitors, etc.;
    3. whether the conduct violates corporate policy (and, if so, how effectively that policy is policed, and how quickly the conduct was terminated when senior officials became aware of it);
  3. any remedial steps by the respondent; and
  4. compliance policies of the Competition Bureau.

7.2. Procedure

The decision to pursue a prohibition order under s. 34(2) requires the approval of the CFP of the NCRO. The CFP will sign the information in support of the prohibition order.

The Deputy DPP, Regulatory and Economic Prosecutions and Management Branch, must approve the decision to pursue a s. 34(2) prohibition order in cases of significant public interest. A request for the Deputy DPP’s approval must be accompanied by a memorandum outlining the background of the matter and the reasons for the recommendation. A draft order, information, notice of application, consent, and an agreed statement of facts or affidavit must also be included.

Appendix A – Memorandum of Understanding Between the Commissioner of Competition and the Director of Public Prosecutions

May 13, 2010

With respect to the conduct of criminal investigations and prosecutions of offences under the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act.

Preamble

Whereas the Director of Public Prosecutions (DPP) and the Commissioner of Competition (Commissioner), the Parties to this Memorandum of Understanding (the Parties), have separate responsibilities within the criminal justice system of Canada, each Party recognizing the other's independence in performing their respective functions and duties;

Whereas the Office of the Director of Public Prosecutions, referred to as the Public Prosecution Service of Canada (PPSC), has a section composed of prosecutors (the Competition Law Section) specifically assigned to prosecutions of offences under the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act, and the Precious Metals Marking Act (the Acts);

Whereas the Commissioner carries out her responsibilities with the support of the Competition Bureau (Bureau), which is composed of authorized representatives, including managers, competition law officers (officers), and support staff;

Whereas the Parties recognize that their roles are interdependent and they need to work together in close consultation in support of one another's mandates;

Whereas it is understood that effective collaboration can be based only on a clear understanding of one another's roles, mutual respect, and trust;

Whereas federal prosecutors are guided by the principles articulated in the Federal Prosecution Service Deskbook (FPS Deskbook).

Therefore the Parties agree as follows:

1. Purpose of the Memorandum of Understanding and Governing Principles

1.1 The purpose of this Memorandum of Understanding (MOU) is:

  1. to provide a clear understanding of the Parties' respective roles and responsibilities at the investigative and prosecution stages of a case under the Acts; and,
  2. to improve the efficacy of prosecutions and to implement strategies to enhance the quality of investigations and of the cases presented at trial.

1.2 As a best practice, each Party undertakes to consult the other regarding any decision that is likely to have an impact on a prosecution emanating from a Bureau investigation.

1.3 The Parties undertake to disseminate this MOU throughout their respective organizations so that prosecutors, paralegals, managers, officers and support persons are aware of the principles it establishes and the resolve of the Parties to achieve its purpose.

2. Roles and Responsibilities

2.1 In the exercise of their respective mandates the Parties respect one another's independence while recognizing the need to work together toward common goals.

2.2 The Bureau's responsibilities include the investigation of suspected offences under the Acts, the referral of evidence to the PPSC, and the making of recommendations on the charges to be laid, the appropriate sanction(s) to be imposed, and the granting of immunity and leniency.

2.3 The PPSC is responsible for: prosecutorial advice, both general and specific during the investigation; the decision, in accordance with FPS Deskbook principles, as to whether charges should proceed, the wording of charges, and the choice of persons to be charged; and the prosecution of charges laid.

Bureau: Roles and Responsibilities at the Investigative Stage

2.4 The primary mandate of the Bureau is to enforce and administer the Acts. The Acts are designed to – among other objectives – maintain and encourage competition in Canada, and to provide consumers with competitive prices and product choices.

2.5 Officers commence and conduct investigations pertaining to the Acts. They are responsible for identifying the object and targets of an investigation. They also determine the structure, scope, and duration of those investigations, and the means to be used to carry them out. Under the direction of the Commissioner, officers exercise full discretion with respect to the conduct of investigations.

2.6 The Bureau will assign a lead officer at the opening of an investigation. The lead officer and assigned counsel will be one another's primary point of contact on the file and will keep one another updated as to developments. Officers assigned to the file will keep one another updated as to developments.

2.7 Officers gather evidence, and ensure its preservation. They organize the information and evidence collected over the course of an investigation, in anticipation of litigation and with a view to the Crown's disclosure obligation in accordance with the Briefing Note on Disclosure and with any other directive or guideline of the DPP.

2.8 As may be reasonable, officers will seek the advice of counsel in the PPSC Competition Law Section, assigned counsel from a PPSC regional office or, where appropriate, designated agents of the DPP as defined in paragraph 2.17 of this MOU (counsel) on any legal issue likely to impact an investigation or any subsequent prosecution. Officers will also refer to the relevant Practice Notes issued by the Competition Law Section (PPSC).

2.8.1 More specifically, officers will consult counsel in relation to the following:

2.9 In seeking any legal advice, managers and officers will inform counsel of the existence of legal advice they have already received on a given matter from another counsel, of requests for advice on the same or related issues of which they are aware, and of all relevant facts. The above information should be provided to counsel in writing to prevent any misunderstanding.

2.10 When the Bureau formally refers matters together with an RTCC pursuant to section 23 of the Competition Act for such action as warranted, it will endeavour to do so as expeditiously as possible, consistent with its enforcement priorities.

Bureau: Roles and Responsibilities at the Prosecution Stage

2.11 Officers are responsible for providing ongoing, timely support and assistance to counsel during the course of post-referral proceedings until the prosecution is completed. More specifically, they will:

2.12 Officers will continue to provide all relevant evidence, reports and briefs discovered or produced throughout the prosecution phase.

2.13 Officers, when called as witnesses, shall bring with them all notes and evidence in their possession relevant to their anticipated testimony.

2.14 The Bureau is responsible for making arrangements for the attendance of all Crown witnesses in court, expert reports, witness fees, and all litigation expenses, in accordance with applicable Treasury Board guidelines and Rules of Court.

Plea and Resolution Discussions

2.15 The Bureau is responsible for fully briefing counsel of the results of its investigation and identifying available evidence prior to the commencement of any plea and sentence negotiations. The briefing must provide a synopsis of the available evidence, both documentary and testimonial. The Bureau is responsible for making recommendations indicating what it believes to be an appropriate sentence, together with its rationale based on the Bureau's Information Bulletin on Sentencing and Leniency in Cartel Matters.

Prosecutors: Roles and Responsibilities at the Investigative Stage

2.16 Pursuant to subsection 3(3) of the Director of Public Prosecutions Act, the DPP is responsible for carrying out varied duties, which either involve or are related to the prosecution of offences. Broadly speaking, federal prosecutors carry out the criminal litigation responsibilities on behalf of the DPP, namely, the prosecution of infractions and all prosecution-related functions. The PPSC acts as prosecutor in all matters prosecuted by the DPP on behalf of the Crown. The PPSC ensures that a consistent national approach is taken to issues arising in prosecutions under the Acts.

2.17 The DPP may delegate his or her duties to private sector counsel or to counsel in the Department of Justice, Competition Bureau Legal Services (CBLS), and these counsel may act as an agent of the DPP only when they have been designated as such by the DPP for a specific case.

2.18 A prosecutor's role is to provide assistance and timely and strategic legal advice at the outset and during the course of an investigation, in accordance with the FPS Deskbook.

2.19 The PPSC, at the Bureau's request, will assign counsel to provide advice and assistance. The lead officer and assigned counsel will be one another's primary point of contact on the file and will keep one another updated as to developments. Where more than one counsel is assigned to the file, a lead counsel will be designated. Counsel assigned to the file will ensure that they update one another as to developments.

2.20 If requested, counsel may provide advice in the development of Bureau policies and programs in the criminal field (e.g., the Immunity Program) and on any related questions; draft and update practice and advisory notes (e.g., search and seizure, disclosure, immunity and plea agreements); and periodically provide information sessions and training programs to officers.

2.21 Counsel will help shape the investigation in the early stages by advising officers on the nature of the evidence required, and by providing input into the development of the case, the use of investigative powers, the adequacy of the evidence and the quality of the witnesses.

2.22 Counsel will assist the Bureau with any investigative procedure in a timely way. A refusal by a prosecutor to adopt a procedure, where approval by the PPSC is required, will be explained to the Bureau.

2.23 Counsel will provide assistance relating to:

2.24 Timely legal advice will be provided to officers or, alternatively, to their supervisors to ensure that investigation techniques and procedures are consistent with the rules of evidence and constitutional standards. Where such advice differs from that set out in the practice and advisory notes, counsel will explain any discrepancy, if requested.

2.25 When an officer seeks legal advice, counsel will consult with the officer to determine whether legal advice is necessary, the specific legal question to be answered, and the form that the advice should take. If the legal advice is to be provided in the form of a written legal opinion, counsel should consult with the officer before the opinion is finalized so as to ensure that all relevant facts have been set out and all relevant legal issues have been considered and answered.

2.26 Bearing in mind the independence of prosecutors and the need to assess cases on their own particular facts, counsel nevertheless recognizes the benefit of ensuring consistent advice and will strive to be consistent with that provided by other federal prosecutors.

Prosecutors: Roles and Responsibilities at the Prosecution Stage

2.27 Counsel is responsible for the authorization and the prosecution of charges in court and for the conduct of all plea and resolution discussions. Counsel are agents of the DPP and prosecute offences on behalf of the Crown; they are bound by the Constitution, statute law, jurisprudence, and the rules of the relevant provincial or territorial law societies.

2.28 Upon the referral of evidence by the Bureau to the PPSC, counsel will review the evidence in the case in accordance with the “2.3 Decision to Prosecute” policy of the FPS Deskbook. This review is a crucial component of the exercise of independent prosecutorial discretion.

2.29 As far as reasonably possible, a decision to prosecute is to be taken by an arms-length counsel not originally assigned to the investigation who consult his or her colleagues assigned to the investigation before deciding independently whether or not to lay charges.

2.30 Counsel will, in a timely way, review all evidence referred, and in consultation with the officers, where applicable:

2.31 The decision to prosecute is an ongoing process that continues throughout the prosecution. Counsel shall determine the sufficiency of evidence and evaluate whether a prosecution is in the public interest. In doing so, counsel shall exercise independent judgment and should consult with the Bureau to determine whether the prosecution is in the public interest.

2.32 The prosecutor's role is not to obtain a conviction but to lay before a trier of fact credible evidence relevant to an alleged offence. This must be done fairly, excluding any notion of winning or losing. However, if counsel elects to pursue a prosecution, it is done vigorously and to the best of his or her ability, with due regard to the law, legal ethics, his or her role as an officer of the court, and the overriding obligation to act objectively and fairly in the public interest. Further, when exercising his or her discretion, counsel must act independently, fairly, objectively and impartially.

2.33 Counsel is responsible for the conduct of all plea and resolution discussions. Counsel must ensure that the conduct meets the standards articulated by the FPS Deskbook. Counsel will consult the Bureau to elicit its views as to the appropriateness of any proposed plea and sentence or other resolution, and will consider the Bureau's comments. This consultation should be ongoing so that the Bureau fully appreciates how the negotiations have been conducted in order that it can make a more informed recommendation. If a plea agreement is reached, counsel will convey to the officers the substance of the agreement and the reasoning behind it. Usually officers are present and provide assistance to prosecutors at plea and sentencing negotiations.

2.34 Counsel will consult with the Bureau on questions of staying or withdrawing charges, and on decisions to appeal. Counsel will provide an explanation of these decisions to the Bureau, if requested.

2.35 Counsel has an obligation to ensure that witnesses, including officers, are prepared adequately prior to testifying and that notices required pursuant to the rules of evidence have been served in a timely manner.

3. Immunity — Leniency

3.1 To uncover and stop criminal activity pursuant to the Competition Act, the Bureau has put in place the Immunity Program that sets out the Bureau's practices, its role and the role of the PPSC in the immunity process, the conditions under which the Bureau will recommend that the PPSC grant immunity and the responsibilities of the immunity applicant. The Immunity Program is one of the Bureau's most effective tools for detecting and investigating criminal activities prohibited by the Competition Act.

3.2 The Bureau and the PPSC recognize that, in respect of serious criminal activity under the Competition Act, it is in the public interest to offer immunity from prosecution to a participant who is willing to terminate its participation in the illegal conduct and fully cooperate with the Bureau and PPSC.

3.3 The Bureau's Leniency Program complements the Immunity Program and aims at encouraging other participants in an illegal cartel to acknowledge their actions and cooperate with the Bureau and the PPSC

3.4 The Bureau and the PPSC recognize that certainty, predictability of results and transparency are crucial to the effective operation of the Immunity and Leniency Programs.

3.5 The management of the Immunity and Leniency Programs, including such matters as acceptance of markers, taking of proffers, interviewing of witnesses and the collection of documentary evidence, is the responsibility of the Bureau.

3.6 A recommendation for immunity or leniency by the Bureau to the PPSC must fully set out the relevant considerations in order to permit counsel to exercise independent discretion while referencing as complete a record as possible.

3.7 The decision to grant immunity or leniency upon a recommendation by the Bureau, or otherwise, rests solely with counsel who exercises his or her independent discretion in accordance with the principles articulated in the FPS Deskbook. However, the Bureau's recommendation to the PPSC is given due consideration.

3.8 Officers and counsel shall consult one another as necessary throughout the immunity or leniency processes to ensure that all criteria are satisfied and that the public interest may be served by granting immunity and leniency in appropriate cases.

3.9 When counsel agrees with the recommendations of the Bureau, he or she must obtain approval from his or her manager to enter into an immunity agreement, or plea agreement, that sets out the terms by which the participants to the immunity or plea agreement will be bound. A standard immunity agreement form or plea agreement form must be used in this regard. This process will be guided by the principles set out in paragraph 3.4.

3.10 All plea and sentence resolutions concluded prior to charges being laid, and where appropriate after charges are laid, shall be reduced to a written plea agreement in the approved form, which shall include a statement of admitted facts.

3.11 Any deviation from the standard immunity agreement form or plea agreement form must be approved by the Director of the CLS, and notification given to the relevant Deputy Commissioner.

3.12 The Bureau is responsible for assessing whether the immunity or leniency applicant is in compliance with the terms of an immunity or plea agreement and to provide counsel with the evidence supporting a recommendation that immunity or leniency be revoked.

3.13 The decision to revoke immunity or leniency rests solely with counsel who will give due consideration to the Bureau's recommendation for revocation. Counsel shall exercise independent discretion when considering revocation or any other appropriate remedy, in accordance with paragraph 35.8 of the FPS Deskbook, after examining the terms of the agreement and the manner in which it was breached.

4. Disclosure Protocol

4.1 Prosecutors must act in accordance with the disclosure policies of the PPSC. In all prosecutions, the Bureau will be responsible for ensuring timely and complete disclosure in accordance with the Advisory Note on Disclosure.

4.2 A designated Bureau officer (the disclosure officer) will ensure that complete disclosure is available to each accused at the time of first appearance, in a form that is acceptable to PPSC counsel and in compliance with the Advisory Note on Disclosure.

4.3 The disclosure officer will provide supplementary disclosure to counsel as soon as reasonably practicable.

4.4 The disclosure officer will endeavour to bring to the attention of counsel any material that is subject to legal privilege, such as solicitor-client privilege or informer privilege. The final determination regarding whether a privilege applies with respect to disclosure is the responsibility of counsel.

4.5 Disclosure will generally be made electronically.

4.6 The Bureau is responsible for the costs of disclosure. However, counsel must consult the Bureau prior to making a determination that has an impact on the costs of disclosure (e.g., software to be used). Counsel will consider the best way to structure disclosure from the outset of an investigation so as to minimize cost and the duplication of effort.

4.7 Counsel has an ongoing role to give advice and consult with the officers with respect to the nature of the evidence and information that is required as part of disclosure. The final responsibility for reviewing disclosure and determining the information to be disclosed lies with counsel.

5. Designated Officials

5.1 The following designated officials will have overall administrative responsibility for the implementation of this MOU.

For the Competition Bureau:

Senior Deputy Commissioner of Competition, Criminal Matters Branch

Deputy Commissioner of Competition, Fair Business Practices Branch

For the PPSC:

Director of the Competition Law Section, Public Prosecution Service of Canada

6. Confidentiality and Security of Information

6.1 Subject to the provisions of this MOU, the Competition Act, the Access to Information Act, the Privacy Act, and any other applicable Act of Parliament, the information shared between the Parties under the terms of this MOU will be treated as confidential, and will be protected from further disclosure. The shared information can be used only for the specific purpose for which it is provided, and will not be passed on to any third party without the written consent of the Party from whom it originated. In the event of a request for disclosure of information under the Access to Information Act or the Privacy Act, the Party receiving the request agrees to consult with the other Party.

6.2 Each Party will ensure that its procedures for safeguarding information subject to this MOU comply with its operational standards and government security policy.

7. Dispute Resolution

7.1 Any dispute arising from this MOU shall be referred to the designated officials noted in Part 5 of this MOU for resolution. If these officials are unable to resolve the dispute, it shall be referred to the Commissioner of Competition, and the Deputy Director for resolution.

8. Review

8.1 The Parties agree to review this MOU as required.

9. Amendments

9.1 This MOU may be amended at any time with the consent of the Parties. Such amendments may be effected by an exchange of letters between the Commissioner of Competition and the Deputy Director.

10. Effective Date and Termination

10.1 This MOU shall come into effect on the date when it is last signed.

10.2 Either of the Parties may terminate this MOU upon six months written notice to the other Party. Such notice shall be given by either the Commissioner of Competition or the Deputy Director.

11. Nature of the MOU

11.1 This MOU is an administrative understanding between the Parties. It is not intended to be legally binding or enforceable before the courts, nor is it designed to alter the pre-existing obligations, responsibilities, duties, or entitlements of either Party as may be defined by statute, regulation, or otherwise.

In Witness Thereof, this Memorandum was signed in duplicate, each copy being equally authentic

For the Competition Bureau

_________________________
_________________________
Melanie L. Aitken
Commissioner of Competition

Date

For The Public Prosecution Service Of Canada

_________________________
_________________________
Chantal Proulx
Acting Deputy Director of Public Prosecutions

Appendix B – Organization Immunity Agreement Template

Public Prosecution Service of Canada

[ORGANIZATION IMMUNITY AGREEMENT]

THIS AGREEMENT IS BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

as represented by the

Director of Public Prosecutions

- and -

[X LTD.]

This document sets out the terms and conditions of an agreement between Her Majesty the Queen in right of Canada, as represented by the Director of Public Prosecutions [“DPP”], and [X Ltd., as defined below] governing the grant of immunity from prosecution under the Competition Act [“Act”].

This grant of immunity follows an application by [X Ltd.] to the Commissioner of Competition [“Commissioner”] in accordance with the Competition Bureau’s information bulletin entitled Immunity Program under the Competition Act [“Immunity Bulletin”], attached to this agreement as Appendix 1.

This grant of immunity relates only to anticompetitive conduct as defined below.

This agreement is conditional and depends upon [X Ltd.] satisfying all of the terms and conditions set out below.

The parties to this agreement agree and undertake as follows:

  1. Definitions: In this agreement,
    “anticompetitive conduct”
    means that [X Ltd.] [entered into an agreement to fix prices, rig bids, made false and misleading representations, etc.] relating to [insert precise description of the product(s) and geographic market(s)] [insert specific time period]. Specifically [X Ltd.] represents that it [describe particular conduct: description of alleged offence, including nature of illegal behaviour and provision(s) of the Act violated];
    “cooperation”
    means complete, timely and ongoing cooperation, at [X Ltd.’s] own expense throughout, with the DPP and the Commissioner in connection with the investigation of the anticompetitive conduct and in any proceedings that may be instituted by the DPP in relation to the anticompetitive conduct, as more fully described in paragraphs 3 through 5 of this agreement;
    “confidential information”
    means this agreement and any information that in any way relates to the investigation of the anticompetitive conduct;
    “record”
    has the same meaning as found in section 2 of the Competition Act, RSC, 1985, c C-34;
    “[X Ltd.]”
    means [as agreed by the parties to this agreement; here specify what other affiliates, etc. may be included].
  2. Representations: [X Ltd.] represents that:
    1. it has reported to the Commissioner and the DPP that it has engaged in the anticompetitive conduct;
    2. it has taken effective steps to terminate its participation in the anticompetitive conduct;
    3. it has not coerced others to be a party to the anticompetitive conduct; and
    4. it has revealed to the DPP and the Commissioner any and all conduct of which it is aware that may constitute an offence under the Act.
  3. Cooperation and Disclosure: [X Ltd.] shall provide cooperation and full, complete, frank and truthful disclosure to the DPP and the Commissioner, including, but not limited to:
    1. providing all non-privileged information, records and things in its possession, under its control or available to it, wherever located, whether or not requested by the DPP or the Commissioner, that in any manner relate to the anticompetitive conduct. Before providing the information, records and things, [X Ltd.] will consult with the Commissioner with respect to the relevance and scope of such information, records and things and the form in which such information, records and things will be provided to the Commissioner;
    2. using all measures, lawful where taken, to secure the cooperation of the current [and former (if appropriate)] directors, officers and employees [agents (if appropriate)] of [X Ltd.], and encouraging such persons to provide voluntarily to the DPP and the Commissioner all of their non-privileged information, records and things that in any manner relate to the anticompetitive conduct;
    3. facilitating, in accordance with the conditions set out in the Immunity Bulletin, the ability of current [and former (if appropriate)] directors, officers and employees [agents (if appropriate)] to appear for interviews and to provide testimony in connection with the anticompetitive conduct as the DPP or the Commissioner may require, at the times and places designated by the DPP or the Commissioner; and
    4. revealing any and all conduct of which it becomes aware that may constitute an offence under the Act.
  4. Corporate Immunity: Having considered the recommendation of the Commissioner and after an independent review by the DPP, the DPP grants [X Ltd.] immunity from prosecution under the Act in respect of the anticompetitive conduct defined above conditional upon:
    1. the veracity of the representations contained in paragraph 2 above; and
    2. the cooperation of and disclosure by [X Ltd.] as required pursuant to this agreement.
  5. Immunity of Individuals Covered by Corporate Immunity Agreement: Subject to the veracity of the representations contained in paragraph 2 above, the DPP grants to the current [and former (if appropriate)] directors, officers and employees [agent, if appropriate] [indicate “carve-outs” from agreement, eg, “other than individual Y”] of [X Ltd.] immunity from prosecution under the Act in respect of the anticompetitive conduct, conditional on their admission of their knowledge of and participation in the anticompetitive conduct and on their continuing cooperation with and disclosure to the DPP and the Commissioner. Such cooperation and disclosure shall include, but not be limited to:
    1. providing all non-privileged information, records and things (including personal records), in their possession, under their control or available to them, wherever located, whether or not requested by the DPP or the Commissioner, and that in any manner relate to the anticompetitive conduct, without falsely implicating any person or withholding any information known to them. Before providing the information, records and things, individuals covered by this agreement will consult with the Commissioner with respect to the relevance and scope of such information, records and things and the form in which such information, records and things will be provided to the Commissioner;
    2. making themselves available in Canada for interviews and to testify in judicial proceedings at times and places designated by the DPP or the Commissioner; and
    3. revealing any and all conduct which may constitute an offence under the Act.
  6. Revocation of Corporate Immunity Does Not Affect Individual Immunity: If at any time the Commissioner or the DPP should determine that [X Ltd.] does not satisfy the terms and conditions of this agreement and its immunity under this agreement is revoked, individual protection under this agreement will continue so long as no grounds exist to revoke, and the DPP has not revoked, the individual’s immunity pursuant to paragraph 14 of this agreement.
  7. Confidentiality of Identity: The DPP and the Commissioner shall not disclose to any third party the identity of [X Ltd.] or the individuals covered by this agreement [“individuals”], except where:
    1. disclosure is required by law, including:
      1. in response to an order of a Canadian court of competent jurisdiction; or
      2. to a person charged with an offence in Canada;
    2. disclosure is necessary to obtain or maintain the validity of a judicial authorization for the exercise of investigative powers;
    3. disclosure is necessary for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers;
    4. [X Ltd.] has agreed to disclosure;
    5. there has been disclosure by [X Ltd.]; or
    6. disclosure is necessary to prevent the commission of a serious criminal offence.
  8. Confidentiality of Information: The DPP and the Commissioner shall not disclose to any third party information obtained from [X Ltd.] or the individuals, subject only to the exceptions listed above or where disclosure of such information is otherwise for the purpose of the administration or enforcement of the Act.
  9. Disclosure to Foreign Law Enforcement Agency: The DPP and the Commissioner shall not disclose the identity of [X Ltd.] or the individuals, nor the information obtained from [X Ltd.] or the individuals, to any foreign law enforcement agency without the consent of [X Ltd.].
  10. Disclosure to Third Parties: Unless made public by the DPP or the Commissioner, or as required by law, [X Ltd.] and any individual shall not disclose confidential information to any third party, without the consent of the DPP, which consent will not be unreasonably withheld. Where disclosure is required by law, [X Ltd.] or any individual shall give notice to and consult with the DPP prior to making any required disclosure.
  11. Notice of Disclosure to Third Parties: If any third party seeks to compel disclosure of confidential information from any party to this agreement, or any individual, that party or individual shall give prompt notice to the parties to this agreement, and shall take all reasonable steps to resist disclosure unless all parties to this agreement consent to such disclosure.
  12. Failure to Comply with the Immunity Agreement: The parties agree that full compliance with all of the terms and conditions in this agreement by any person granted immunity by it is a condition of and fundamental to the agreement. The parties also agree that the accuracy and veracity of all representations required by this agreement by any person granted immunity by it is a condition of and fundamental to the agreement. Non-compliance with any of the terms and conditions of this agreement by any person granted immunity by it constitutes a breach of the agreement by that person, which may result in revocation of immunity for that person.
  13. Revocation of Corporate Immunity: If the DPP determines that [X Ltd.] has made misrepresentations with respect to any of the matters referred to in paragraph 2, failed to provide the cooperation and disclosure required under paragraph 3, or failed to comply with any other terms and conditions of this agreement, the DPP may revoke the immunity granted to [X Ltd.] upon fourteen (14) days prior written notice to counsel for [X Ltd.]. The DPP will provide counsel for [X Ltd.] with an opportunity to meet with the DPP regarding the potential revocation of immunity.
  14. Revocation of Individual Immunity: If the DPP determines that an individual granted immunity by this agreement has not provided the cooperation and disclosure required under paragraph 5 or complied with any other terms and conditions of this agreement, or that the individual has caused [X Ltd.] to be ineligible for immunity, continued to participate in the anticompetitive conduct after [X Ltd.] notified the individual to cease doing so, or obstructed or attempted to obstruct justice, the DPP may revoke the immunity granted to the individual upon fourteen (14) days prior written notice to counsel for the individual and to counsel for [X Ltd.]. Absent exigent circumstances, the DPP will provide counsel for the individual with an opportunity to meet with the DPP regarding the potential revocation of immunity.
  15. Impact of Revocation of Immunity: Following revocation of immunity for a breach of this agreement, as described in paragraphs 12 through 14 above, the DPP may take such action against the person whose immunity has been revoked as the DPP considers appropriate, including prosecution under the Act. In any such action the DPP may use, in any way, any information, evidence, record, statement or testimony provided by any person at any time after the application for immunity and any evidence of any kind derived directly or indirectly from such information, evidence, record, statement or testimony provided. For greater certainty, any privilege that may apply in respect of any information, evidence, record, statement or testimony provided is deemed waived upon revocation of immunity.
  16. Use in Evidence: No information, evidence, record, statement or testimony provided during an interview by any person granted immunity pursuant to this agreement will be used in evidence against that person in any proceedings undertaken by or on behalf of the DPP, except where the person granted immunity:
    1. subsequently gives in any trial, hearing or judicial proceeding (including any proceeding in which the person is an accused) evidence that is materially different from the statement given in an interview;
    2. is charged with perjury, giving contradictory evidence, fabricating evidence or obstructing justice; or
    3. has had its immunity revoked after a breach of this agreement.
  17. Use of Information: Nothing in this agreement affects the right of the DPP or the Commissioner to use any information, evidence, record, statement or testimony provided by any person under this agreement in order to discover or acquire other information, evidence or records from another source.
  18. Privilege and Jurisdiction: Nothing in this agreement, or any action taken pursuant to it, shall constitute:
    1. except for the waiver mentioned in paragraph 15, a waiver of any privilege by any party to this agreement; or
    2. except for the purpose of this agreement and proceedings related to the enforcement of this agreement, a submission to the jurisdiction of the Canadian courts by any person granted immunity by this agreement who is not present in Canada.
  19. Applicable Law: This agreement shall be construed in accordance with the laws of Canada.
  20. Entire Agreement: This agreement constitutes the entire agreement between the DPP and [X Ltd.], including the individuals covered by this agreement, and supersedes all prior understandings or agreements, if any, whether oral or written, relating to the subject matter of this agreement.
  21. Notices: Any notice required to be given under this agreement is deemed to be validly given if in writing and by pre-paid registered mail, courier delivery, facsimile transmission or electronic mail (e-mail) transmission to:
    1. The Director of Public Prosecutions

      [Insert appropriate address and fax number]

      Attention: Public Prosecution Service of Canada, Competition Law Section
    2. The Commissioner of Competition

      Attention: Senior Deputy Commissioner
      Criminal Matters Branch
      20th Floor, Place du Portage, Phase I
      50 Victoria Street, Gatineau, QC, K1A 0C9
      Canada
      Fax: (819) 997-3835
    3. [X Ltd.]

      [Insert appropriate address and fax number]

      Attention:

      With copy to:

      Counsel for [X Ltd.]

      [Insert appropriate address and fax number]

      Attention:
  22. Execution in Counterparts: This agreement may be executed in counterparts.
  23. The Commissioner Joins in this Agreement: The Commissioner joins in this agreement solely for the purposes of giving effect to the Commissioner’s rights and obligations as set out in paragraphs 7 to 11 and paragraph 17 above.
  24. Authority and Capacity: The DPP, [X Ltd.] and the Commissioner each represent and warrant to the others that their respective signatories to this agreement have all the authority and capacity necessary to execute this agreement and to bind them to it. [X Ltd.] represents that it has had an opportunity to consult Canadian legal counsel in respect of this agreement.

The signatories acknowledge the full and voluntary acceptance of the foregoing terms and conditions.

Dated at ____________________ this_______day of __________, 20___.

Her Majesty the Queen in right of Canada as represented by the Director of Public Prosecutions

Per: ___________________________________
[insert name and title of counsel for the Public Prosecution Service of Canada]

Dated at ____________________ this _______day of _________, 20___.

Commissioner of Competition

___________________________________
[insert name of Commissioner of Competition]

Dated at ____________________ this _______day of __________, 20___.

[X Ltd.]

Per: _________________________________
[insert name and title of signing officer]

__________________________________
[insert name of counsel to [X Ltd]]

Appendix C – Individual Immunity Agreement Template

Public Prosecution Service of Canada

[INDIVIDUAL IMMUNITY AGREEMENT]

THIS AGREEMENT IS BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

as represented by the

Director of Public Prosecutions

- and -

[INDIVIDUAL X]

This document sets out the terms and conditions of an agreement between Her Majesty the Queen in right of Canada, as represented by the Director of Public Prosecutions of Canada (“the DPP”) and [INDIVIDUAL X] governing the grant of immunity from prosecution under the Competition Act (the “Act”).

This grant of immunity follows an application by [INDIVIDUAL X] to the Commissioner of Competition [“Commissioner”] in accordance with the Competition Bureau’s information bulletin entitled Immunity Program under the Competition Act [“Immunity Bulletin”], attached to this agreement as Appendix 1.

This grant of immunity relates to anticompetitive conduct as defined below.

This agreement is conditional and depends upon [INDIVIDUAL X] satisfying the terms and conditions set out below.

The parties agree and undertake as follows:

  1. Definitions: In this agreement,
    2. “anticompetitive conduct”
    means that [INDIVIDUAL X.] [entered into an agreement to fix prices, rig bids etc,, made false and misleading representations, etc.] relating to [insert precise description of the product(s) and geographic market(s)] [insert specific time period]. Specifically [INDIVIDUAL X] represents that he/she [describe particular conduct: description of alleged offence, including nature of illegal behaviour and provision(s) of the Act violated];
    “cooperation”
    means complete, timely and ongoing cooperation, at [INDIVIDUAL X’s] own expense throughout, with the DPP and the Commissioner in connection with the investigation of the anticompetitive conduct and in any proceedings that may be instituted by the DPP in relation to the anticompetitive conduct, as more fully described in paragraph 3 of this agreement;
    “confidential information”
    means this agreement and any information that in any way relates to the investigation of the anticompetitive conduct;
    “record”
    has the same meaning as found in section 2 of the Competition Act, RSC, 1985, c C-34;
  2. Representations: [INDIVIDUAL X] represents that he/she:
    1. has reported to the Commissioner and the DPP that he/she has engaged in the anticompetitive conduct;
    2. has taken effective steps to terminate his/her participation in the anticompetitive conduct;
    3. has not coerced others to be a party to the anticompetitive conduct; and
    4. has revealed to the DPP and the Commissioner any and all conduct of which he/she is aware that may constitute an offence under the Act.
  3. Cooperation and disclosure: [INDIVIDUAL X] shall provide cooperation and full, complete, frank and truthful disclosure to the DPP and the Commissioner, including, but not limited to:
    1. providing all non-privileged information, records and things in his/her possession, under his/her control or available to him/her, wherever located, whether or not requested by the DPP or the Commissioner, that in any manner relate to the anticompetitive conduct. Before providing the information, records and things, [INDIVIDUAL X] will consult with the Commissioner with respect to the relevance and scope of such information, records and things and the form in which such information, records and things will be provided to the Commissioner;
    2. making him/herself available in Canada for interviews and to testify in judicial proceedings at times and places designated by the DPP or the Commissioner; and
    3. revealing any and all conduct of which he/she becomes aware which may constitute an offence under the Act.
  4. Immunity: Having considered the recommendation of the Commissioner and after an independent review by the DPP, the DPP grants [INDIVIDUAL X] immunity from prosecution under the Act in respect of the anticompetitive conduct defined above conditional upon:
    1. the veracity of the representations contained in paragraph 2 above; and
    2. the disclosure and cooperation of [INDIVIDUAL X] as required pursuant to this agreement.
  5. Confidentiality: The DPP and the Commissioner shall not disclose to any third party the identity of [INDIVIDUAL X.] except where:
    1. disclosure is required by law, including:
      1. in response to an order of a Canadian court of competent jurisdiction; or
      2. to a person charged with an offence in Canada;
    2. disclosure is necessary to obtain or maintain the validity of a judicial authorization for the exercise of investigative powers;
    3. disclosure is necessary for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers;
    4. [INDIVIDUAL X.] has agreed to disclosure;
    5. there has been disclosure by [INDIVIDUAL X.]; or
    6. disclosure is necessary to prevent the commission of a serious criminal offence.
  6. Confidentiality of Information: The DPP and the Commissioner shall not disclose to any third party information obtained from [INDIVIDUAL X.] subject only to the exceptions listed above or where disclosure of such information is otherwise for the purpose of the administration or enforcement of the Act.
  7. Disclosure to Foreign Law Enforcement Agency: The DPP and the Commissioner shall not disclose the identity of [INDIVIDUAL X.] nor the information obtained from [INDIVIDUAL X.] to any foreign law enforcement agency without the consent of [INDIVIDUAL X.].
  8. Disclosure to Third Parties: Unless made public by the DPP or the Commissioner, or as required by law, [INDIVIDUAL X.] shall not disclose confidential information to any third party, without the consent of the DPP, which consent will not be unreasonably withheld. Where disclosure is required by law, [INDIVIDUAL X.] shall give notice to and consult with the DPP prior to making any required disclosure.
  9. Notice of Disclosure to Third Parties: If any third party seeks to compel disclosure of confidential information from any party to this agreement that party shall give prompt notice to the parties to this agreement, and shall take all reasonable steps to resist disclosure unless all parties to this agreement consent to such disclosure.
  10. Failure to Comply with the Immunity Agreement: The parties agree that full compliance with all of the terms and conditions in this agreement by [INDIVIDUAL X] is a condition of and fundamental to the agreement. The parties also agree that the accuracy and veracity of all representations required by this agreement by [INDIVIDUAL X] is a condition of and fundamental to the agreement. Non-compliance with any of the terms and conditions of this agreement by [INDIVIDUAL X] constitutes a breach of the agreement which may result in revocation of immunity.
  11. Revocation of Immunity: If the DPP determines that [INDIVIDUAL X] has made misrepresentations with respect to any of the matters referred to in paragraph 2, failed to provide the cooperation and disclosure required under paragraph 3, or failed to comply with any other terms and conditions of this agreement, the DPP may revoke the immunity granted to [INDIVIDUAL X.] upon fourteen (14) days prior written notice to counsel for [INDIVIDUAL X.]. The DPP will provide counsel for [INDIVIDUAL X] with an opportunity to meet with the DPP regarding the potential revocation of immunity.
  12. Impact of Revocation of Immunity: Following revocation of immunity for a breach of this agreement, as described in paragraphs 10 and 11 above, the DPP may take such action against [INDIVIDUAL X] as the DPP considers appropriate, including prosecution under the Act. In any such action the DPP may use, in any way, any information, evidence, record, statement or testimony provided by [INDIVIDUAL X] at any time after the application for immunity and any evidence of any kind derived directly or indirectly from such information, evidence, record, statement or testimony provided. For greater certainty, any privilege that may apply in respect of any information, evidence, record, statement or testimony provided is deemed waived upon revocation of immunity.
  13. Use of Statements: No information, evidence, record, statement or testimony provided by [INDIVIDUAL X] during an interview will be used in evidence against him/her in any proceedings undertaken by or on behalf of the DPP except where [INDIVIDUAL X]:
    1. subsequently gives in any trial, hearing, or judicial proceeding (including any proceeding in which [INDIVIDUAL X] is an accused) evidence that is materially different from the statement given in an interview;
    2. is charged with perjury, giving contradictory evidence, fabricating evidence or obstructing justice; or
    3. has had his/her immunity revoked after a breach of this agreement.
  14. Use of Information: Nothing in this agreement affects the right of the DPP or the Commissioner to use any information, evidence, record, statement or testimony provided by [INDIVIDUAL X] in order to discover or acquire other information, evidence or records from another source.
  15. Privilege and Jurisdiction: Nothing in this agreement, or any action taken pursuant to it, shall constitute:
    1. except for the waiver mentioned in paragraph 12, a waiver of any privilege by any party to this agreement; or
    2. except for the purpose of this agreement and proceedings related to the enforcement of this agreement, a submission to the jurisdiction of the Canadian courts by [INDIVIDUAL X], who is not present in Canada.
  16. Applicable Law: This agreement shall be construed in accordance with the laws of Canada.
  17. Entire Agreement: This agreement constitutes the entire agreement between the DPP and [INDIVIDUAL X] and supersedes all prior understandings or agreements, if any, whether oral or written, relating to the subject matter of this agreement.
  18. Notices: Any notice required to be given under this agreement is deemed to be validly given if in writing and by pre-paid registered mail, courier delivery, facsimile transmission or electronic mail (e-mail) transmission to:
    1. The Director of Public Prosecutions

      [Insert appropriate address & fax number]

      Attention: Public Prosecution Service of Canada, Competition Law Section
    2. The Commissioner of Competition

      Attention: Senior Deputy Commissioner

      Criminal Matters Branch
      20th Floor, Place du Portage, Phase I
      50 Victoria Street, Gatineau, QC, K1A 0C9
      Canada
      Fax: (819) 997-3835
    3. [INDIVIDUAL X]

      [Insert appropriate address & fax number]

      Attention:
    4. With copy to:

      Counsel for [INDIVIDUAL X]

      [Insert appropriate address & fax number]

      Attention:
  19. Execution in Counterparts: This agreement may be executed in counterparts.
  20. The Commissioner Joins in this Agreement: The Commissioner joins in this agreement solely for the purposes of giving effect to the Commissioner’s rights and obligations as set out in paragraphs 7 to 11 and paragraph 17.
  21. Authority and Capacity: The DPP, [INDIVIDUAL X.] and the Commissioner each represent and warrant to the others that their respective signatories to this agreement have all the authority and capacity necessary to execute this agreement and to bind them to it. [INDIVIDUAL X.] represents that he/she has had an opportunity to consult Canadian legal counsel in respect of this agreement.

The signatories hereto acknowledge the full and voluntary acceptance of the foregoing terms and conditions.

Dated at ____________________ this _______day of __________, 20___.

Her Majesty the Queen in right of Canada as represented by the Director of Public Prosecutions

Per: ____________________________________
[insert name and title of counsel for the Public Prosecution Service of Canada]

Dated at ____________________ this _______day of _________, 20___.

Commissioner of Competition

Per: ____________________________________
[insert name of Commissioner of Competition]

Dated at ____________________ this _______day of __________, 20___.

[INDIVIDUAL X]

Per: ____________________________________
[insert name]

Dated at ____________________ this _______day of __________, 20___.

Signature of [INDIVIDUAL X] witnessed by counsel to [INDIVIDUAL X]

Per: ____________________________________
[insert name of counsel to [INDIVIDUAL X]]

Appendix D – Letter of Individual Coverage Associated with Organization Immunity

Public Prosecution Service of Canada

Name of [X LTD.] director, officer or employee (company individual)

Address

Dear company individual:

Re: [X LTD.] – Immunity Agreement – Interview – Company Individual

This is to confirm that pursuant to the Competition Bureau’s information bulletin, entitled Immunity Program under the Competition Act, [X LTD.] has entered into an immunity agreement [“the agreement” – attached to this letter as an appendix] with the Director of Public Prosecutions and the Commissioner of Competition. The agreement, which governs the terms and conditions of your eligibility for immunity, covers you as a current director, officer or employee of [X LTD.] (as defined in the agreement) subject to your full disclosure and cooperation, as described in the agreement.

By signing this letter, you confirm that you have read and that you understand the agreement and that you have had an opportunity to consult with Canadian legal counsel in respect of the agreement.

By signing this letter you acknowledge your full and voluntary acceptance of the terms and conditions of the agreement pertaining to individuals and agree to be bound by them.

Dated at city this ____ day of month, year

Her Majesty the Queen in right of
Canada as represented by the Director
of Public Prosecutions

_________________________
Signature of PPSC counsel

I understand the content of this letter and agree to the terms and conditions of the agreement pertaining to individuals.

_________________________
Company individual

Dated: ______________________

Appendix E – Letter Guaranteeing No Direct Use in Evidence of Information Provided

Address
Telephone:
Facsimile:
*.*@ppsc-sppc.gc.ca

PRIVILEGED and CONFIDENTIAL

[Date]

[Name/address]

Re: Inquiry Name

Dear [witness’ name],

This letter sets forth the basis upon which you will make yourself available on [date], for an interview in connection with the Commissioner of Competition’s investigation into possible violations of the Competition Act in the [Inquiry Name or Industry Name].

  1. You have had an opportunity to consult with legal counsel.
  2. At your request, [counsel’s name] counsel, may be present at the interview.
  3. The Director of Public Prosecutions (DPP) agrees that no statement made by you, or any record that you or [X ltd.] make available during the interview, will be used directly against you, in any legal proceeding brought by the DPP or the Commissioner of Competition, except that your statements or documents may be used in any such proceeding to impeach your testimony or to rebut evidence offered on your behalf. In addition, the DPP may use any statements made in the interview in a prosecution of you for perjury, obstruction of justice, or giving contradictory evidence.
  4. Subject to paragraph 3 above, the Commissioner or DPP is free to use any information from the interview to pursue [his/her] investigation and any information directly or indirectly derived from the interview in any subsequent prosecution of you or others.

This letter constitutes the entire understanding between the DPP and you. Please sign and date this letter to indicate your understanding of and agreement with the conditions for your interview.

__________________________
Witness Name

Dated: ____________________

Yours Truly,

X__________________________
[PPSC counsel]

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