The Power of Perspectives

The Canadian Bar Association

Kim Covert

First rule of immunity and leniency program: Do less harm

August 22 2018 22 August 2018

 

The CBA’s Competition Law Section is very pleased that many of the recommendations it made in its January submission on proposed changes to the Competition Bureau’s Immunity and Leniency Programs have been heeded. But many of the remaining proposals introduce the kind of uncertainty into the process that could keep would-be self-reporters away.

“It is a core principle of the Immunity and Leniency Programs that a cooperating party should not be made worse off by deciding to self-report to the Bureau,” the Section writes in a submission on the second round of consultations. “However, the cumulative impact of the proposed changes creates new risks and exposures for parties deciding to seek immunity and leniency,” and might “encourage prospective applicants to skip Canada, given the burdens and uncertainties” they introduce.

The Section commends the government for removing some of the more controversial proposed changes, including the recording of attorney proffers, and deferring the recording of witness interviews until a later point in the process, as well as giving additional assurances about the binding nature of the interim grant of immunity.

However, “this latest round of proposed revisions introduces new burdens on prospective immunity and leniency applicants, heavily emphasizes the spectre of revocation of immunity/leniency, and suggests that draconian measures may be imposed against parties whose immunity has been revoked (including the immunity applicant’s evidence being used against them),” the Section writes.

The Section is concerned that this will put immunity or leniency applicants at a “distinct disadvantage relative to non-cooperating parties” and thus create disincentives for anyone to come forward, which will undermine the effectiveness of the program overall.

The Bureau is being heavy-handed in its repeated warnings about the possibility of revocation of immunity status, particularly given that the instances of it happening are relatively rare, the Section says. Moreover, new examples of the kinds of behaviour that could lead to revocation are overly subjective and not in keeping with the type of conduct identified in the PPSC’s Prosecution Deskbook.

One especially troubling proposed change implies that people who have had their immunity revoked could see the information they provided in evidence used against them, and any privilege associated with that information will be deemed to have been waived.

“In our view, this suggestion is grossly unfair and punitive and also contrary to existing jurisprudence,” the Section says. “The law in Canada is clear that settlement privilege applies to plea negotiations with the DPP, even if they are unsuccessful.”

The Section takes issue with a number of proposed changes, including:

  • The requirement to give “credible and reliable evidence” to obtain immunity or leniency, which “introduces a new element of unpredictability that undermines the operation of the programs”
  • Ambiguities associated with the introduction of the concept of recidivist
  • Continuing concerns with the recording of interviews with witnesses
  • The applicant’s obligation to take “all lawful measures” to secure witness cooperation
  • The burden placed on the applicant by the protocol for reviewing privilege claims
  • A new proposed requirement that leniency applicants must consent to a prohibition order

“We encourage the Bureau to reconsider a number of its proposed revisions to the Immunity and Leniency Programs, since as currently proposed these revisions will undermine the goal of effective criminal enforcement in Canada.”

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