Archived — Draft Information Bulletin on Sentencing and Leniency in Cartel Cases

Bulletin

April 28, 2008

top of page

Preface

This Bulletin sets out the factors that the Competition Bureau considers in making a recommendation to the Director of Public Prosecutions for lenient treatment of individuals and business organizations accused of criminal cartel offences under the Competition Act.

"Lenient treatment" is not a novel concept. Under the Bureau's Immunity Program, where a party does not qualify for immunity, but the party co-operates with the investigation, the Bureau may recommend that the Director of Public Prosecutions consider some form of leniency. In making such recommendations in the past, the Bureau has taken into account a number of different considerations in light of sentencing principles under Canadian law. In the course of considering revisions to the Bureau's Immunity Program, later introduced in October 2007, it became clear that a Leniency Program setting out these considerations would be particularly useful.

A transparent and predictable Leniency Program complements the Immunity Program and supports the Bureau's effective and efficient enforcement of the Act, consistent with the public interest. Parties are more likely to come forward and cooperate (rather than litigate) where they are aware of sentencing principles and leniency considerations, and are confident that the Bureau will follow them in its recommendations to the Director of Public Prosecutions. In developing this Program, we have considered the best practices of foreign jurisdictions that have adopted leniency policies.

I should note that this Program does not bind the Director of Public Prosecutions, who is responsible for the prosecution of criminal offences. It is the courts that are ultimately responsible for sentencing upon conviction. While the Bureau cannot guarantee specific sentencing outcomes in cartel cases, this Bulletin sets out the policy that the Bureau will follow in developing sentencing and leniency recommendations to the Director of Public Prosecutions. I am confident that this initiative advances the transparency and predictability of the Bureau's enforcement policies and practices, and promotes the effective deterrence of cartel activity.

Sheridan Scott

Commissioner of Competition


A. Introduction

I. The Purpose of this Bulletin

  1. This Bulletin establishes the Leniency Program1 of the Competition Bureau for cartel2 cases. Under the Program, the Bureau may recommend to the Director of Public Prosecutions3 that cooperating persons who have breached the cartel provisions under the Competition Act,4 but who are not eligible for a grant of immunity,5 nevertheless be considered for lenient treatment in sentencing.

  2. The Bulletin first sets out, in Part A, the respective roles of the Bureau, the DPP and the Courts in sentencing. In Part B, the Bulletin identifies the general sentencing principles on the basis of which the Bureau makes recommendations to the DPP. Part C establishes the eligibility conditions for participating in the Program, the considerations that the Commissioner takes into account in making recommendations for leniency to the DPP, and the steps required to be taken by parties cooperating with the Bureau to remain eligible for a leniency recommendation under the Program.

  3. In developing this Bulletin, the Bureau is informed by its experience in administering and enforcing the Act, including the Immunity Program; by comments from experts and stakeholders, and by the operation of similar programs in jurisdictions with which the Bureau cooperates regularly.

  4. This Bulletin does not provide legal advice. Readers should refer to the Act when questions of law arise and obtain legal advice if a particular situation causes concern.

II. The Bureau, the Competition Act and the Cartel Provisions

  1. The Bureau is an independent law enforcement agency. It contributes to the prosperity of Canadians by protecting and promoting competitive markets and enabling informed consumer choice.

  2. The Act is a law of general application containing criminal provisions that prohibit anti‑competitive business activities such as cartels and deceptive marketing practices, and civil provisions relating to mergers, abuse of dominant position and misleading advertising. The Commissioner has the independent authority to administer and enforce the Act.

  3. The cartel provisions are a key component of this mandate; among these, section 45, the conspiracy provision, is considered a cornerstone of the Act. Generally, a cartel is a group of business organizations or individuals seeking to limit or eliminate competition, by agreeing to fix prices, restrict output, allocate customers or markets, or rig bids or tenders. Eliminating the incentive to compete freely, cartels increase prices and reduce output in the market, increasing costs to consumers and businesses, hampering innovation and restricting the supply of inputs. Cartel violations are widely condemned as the most egregious anti‑competitive behaviour. As cartels harm economic efficiency without any compensating economic benefit, the effective enforcement of the cartel provisions of the Act is essential for an efficient and competitive Canadian economy. To deter and punish this illegal activity, there are serious criminal penalties for both business organizations and individuals6 convicted of cartel offences. Enforcing these provisions is a top priority for the Commissioner.

III. Roles of the Commissioner, the Director of Public Prosecutions and the Courts

  1. This section sets out the respective roles of the Commissioner, the DPP and the Courts in the investigation, prosecution and sentencing phases of a cartel case. This information is important for understanding the scope of this Bulletin and the Leniency Program, given that the Commissioner may only make recommendations to the DPP concerning sentencing and leniency. The DPP has independent discretion to accept or to reject such recommendations, and the courts are ultimately responsible for sentencing following conviction.

A. The Commissioner

  1. The Commissioner has the independent authority to administer and enforce the Act. The Bureau uses a wide variety of techniques to promote compliance with the Act. These range from public education to referral of matters to the DPP for prosecution.7

I) The Investigation

  1. It is the Bureau's responsibility to investigate a matter that may engage the Act. In addressing an alleged cartel violation, the Bureau begins by conducting a preliminary examination. The Bureau bases this examination and its analysis on information obtained from a number of sources, including:

* complainants, including those who may be direct victims of the cartel behaviour;
* market intelligence gathered by Bureau staff;
* other enforcement agencies;
* parties that have applied for a grant of immunity from prosecution from the DPP under the Bureau's Immunity Program;8 or
* other cooperating parties.

  1. Where the Commissioner has reason to believe that an offence has been, or is about to be, committed and that further investigation is justified, the Bureau commences an inquiry. In advancing the investigation at this stage, the Commissioner may use judicially authorized powers to obtain evidence, including the power to conduct searches of premises and seize both paper and electronic records, the power to seek court orders to compel the production of documents, testimony and written answers, as well as the power to intercept private communications.9

ii) Referral to the DPP

  1. Where the Bureau has evidence that an offence has been committed and considers that prosecution of the offence would be in the public interest, the Commissioner may refer the matter - the evidence, supporting analysis and assessment - to the DPP "for such action as the Attorney General of Canada may wish to take".10 Referrals to the DPP include the Bureau's view as to an appropriate sentence in light of the circumstances of the case.

  2. Following referral, while the Bureau remains an active partner in supporting the prosecution (including at the plea and sentencing discussions), the DPP has independent carriage of the matter and exercises the discretion to determine whether the evidence is sufficient to justify the institution of proceedings and, if it is, whether prosecution is in the public interest.11

B. The DPP

  1. Criminal prosecutions under the Act are the responsibility of the DPP. In the cartel context, as is the case in other areas of criminal law, many cases are ultimately settled as a result of plea and sentencing discussions, which are an essential component of the criminal justice system in Canada. It is in the public interest to avoid unnecessary litigation with its attendant costs and uncertainties while, at the same time, ensuring that parties are held responsible for their criminal activities. The DPP has the sole authority to engage in plea and sentencing discussions with counsel for an accused although the Bureau is usually at the table.

  2. Crown counsel12 must ensure that plea and sentencing discussions meet the standards in the Federal Prosecution Service Deskbook.13 The Deskbookrecognizes the importance of consultations with the investigating agency in the plea and sentencing process. Indeed, there is a significant degree of cooperation between the Bureau and the DPP, not only at the plea and sentencing stages, but also throughout the enforcement process. Bureau staff are responsible for briefing Crown counsel on the results of their investigation, have in-depth knowledge of the facts, and are ideally placed to support and advise Crown counsel in plea and sentencing discussions with counsel for the accused. For this reason, the Bureau's recommendations on sentencing are an important factor to be considered by the DPP. Recommendations by the Bureau do not bind the DPP or, indeed, the courts.

C. The Courts

  1. In Canada, the final determination to impose a sentence is at the sole discretion of the judiciary.14 Judges are not bound by sentencing recommendations and have the authority to determine appropriate sentences with reference to the statutory sentencing objectives and principles as set out in Part XXIII of the Criminal Code.15

B. Sentencing in Cartel Offences

  1. This section sets out general principles of sentencing that the Bureau considers in making sentencing recommendations to the DPP and that courts use in sentencing.

I. Available Sentences under the Act: Fines and Prison Terms

  1. Cartel offences are indictable offences subject to criminal penalties.16 The conspiracy and bid-rigging provisions (sections 45 and 47) apply to both business organizations and individual accused.

  2. Section 45 of the Act provides that an accused, upon conviction, may be liable for a maximum fine of $10 million or a maximum term of imprisonment of five years, or both. An accused under section 47 is liable upon conviction to a fine in the discretion of the court or a term of imprisonment not exceeding five years, or both; there are no maximum fine provisions in respect of section 47 offences. Cartel cases may involve agreements encompassing multiple products, geographic markets, time periods or, in the case of bid-rigging, multiple bids or tenders. Where appropriate on the facts of the case, an accused may face multiple charges under the Act. Consequently, in a conspiracy matter involving multiple counts, the resulting fines may cumulatively exceed the $10 million dollar maximum.

  3. Unlike sections 45 and 47, the foreign directives provision of the Act (section 46) applies to corporations only and penalties are limited to fines in the discretion of the court; as with bid-rigging, there is no maximum fine for a section 46 violation.

II. Sentencing Principles

  1. The fundamental purpose of sentencing in Canada, as set out in the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.17 Sanctions must have one or more of the following objectives: denouncing the unlawful act,18 specific and general deterrence,19 rehabilitation of the offender, providing reparations for the harm done to the victims and to the community, and promoting a sense of responsibility in offenders.

  2. The fundamental principles governing sentencing are that a sentence must be proportionate to the gravity of the offence and that it must reflect the degree of responsibility of the offender.20 Other sentencing principles provide that a sentence should be increased or reduced to account for any aggravating or mitigating circumstances and that it be similar to relevant precedent sentences.21

  3. Section 718.21 of the Criminal Codelists additional factors that a court shall consider in sentencing an organization (see Appendix II).

  4. These sentencing principles and prevailing jurisprudence (both under the Criminal Code and in section 45 cases), along with the object and purpose of the Act, inform the approach of the courts to sentencing in cartel offences.

A. Economic Harm

  1. The magnitude of economic harm is relevant to sentencing in cartel matters. In denouncing and deterring cartels, the overall economic harm caused by the cartel should be taken into account. The Bureau's recommendation for fines in cartel cases begins with an assessment of the magnitude of this economic harm.

  2. The usual notion of 'economic harm' from a cartel is the 'overcharge'. This is the amount paid by victims of the cartel over and above what would have been paid in the absence of the cartel. It serves as the basis for the Bureau's sentencing recommendations.

  3. The economic harm caused by cartel activity is not limited to the specific quantitative effect of higher prices. Cartels also exclude certain purchasers from the market because of the higher prices and have the negative, qualitative effect on the economy as a whole of reducing competition and inhibiting innovation. This reduction in competitive rivalry may lead to inferior goods and services or may inhibit new entrants into the market diminishing the competitive and innovational benefits that such entrants would bring.

  4. In most cases it may be difficult to quantify and establish (to the criminal standard) the actual economic harm resulting from cartel behaviour. In such cases, the Bureau will typically use a proxy to estimate economic harm for sentencing purposes. The proxy used by the Bureau is the volume of commerce in Canada affected by the cartel multiplied by an 'overcharge' factor.

  5. Volume of Commerce: Economic harm is directly tied to the volume of commerce that was subject to the overcharge. The affected volume of commerce in Canada is calculated for each cartel participant by aggregating the value of their sales of the product that was the object of the anti‑competitive agreement over the time period that they participated in the offence.22

  6. There may be cases where one or more parties do not directly participate in the market as part of the cartel arrangement. For example, a party to the cartel may agree not to enter the Canadian market or not to submit a bid in response to a call for tenders. In that case the Bureau will estimate the resulting economic harm. To do this it will use the volume of commerce of the other cartel participants as the basis for calculating the economic harm caused by the non-participating party's illegal conduct. Other factual circumstances such as the size of each participant, their usual role in the market and historic market share figures will also be considered to arrive at an amount representative of the economic harm caused by the participant in question.

  7. In most cases, it is necessary to include only direct sales in Canada to determine volume of commerce. However, it may also be appropriate to include indirect sales to properly reflect the magnitude of the effects of the offence in Canada.

  8. Overcharge factor: Numerous studies have estimated that the amount of the 'overcharge' resulting from cartel activity is in the order of at least 10 percent. However, as noted above, this figure would not capture the totality of the potential or actual harm caused by a cartel. In assessing harm, the Bureau also considers other effects of the cartel, such as the exclusion of consumers from the market as a result of higher prices, i.e. the deadweight loss, and general harmful effect of cartels on the Canadian economy. For this reason, and to ensure adequate deterrence, the Bureau uses 20% of the volume of commerce affected as a proxy of the economic harm.

  9. The economic harm resulting from cartel activity and the need to achieve the goal of both specific and general deterrence support the use of 20 percent of the volume of commerce affected by the defendant's participation in the cartel as the basis for the assessment of fines in cartel cases.23 Simply put, to ensure effective deterrence, fines should reflect both the quantitative and qualitative effects of cartel behaviour. Therefore fines must be greater than the illegally obtained quantitative 'overcharge'. Otherwise, the fine becomes a mere cost of doing business, something that has been regularly denounced in the jurisprudence. Where, in the Bureau's judgment, the proxy of 20 percent of the volume of commerce affected would significantly either overstate, or not capture, the harm caused to the Canadian economy by the particular defendant, the Bureau may apply an adjusted percentage that more closely represents the amount of the overcharge.

  10. In principle, the Commissioner does not submit a fine recommendation to the DPP that represents less than 10 percent of the affected volume of commerce for a business organization, unless it would exceed the statutory $10 million maximum per count.

B. Aggravating and Mitigating Factors

  1. Subsection 718.2(1) of the Criminal Code requires the courts to increase or reduce a sentence by taking into account aggravating and mitigating circumstances relevant to the offence or the offender. This section applies equally to offences under the Act. Accordingly, the Bureau's sentencing recommendations reflect aggravating and mitigating circumstances for each potential accused, whether an individual or a business organization. The aggravating and mitigating factors normally considered by the Bureau are set out in the table below.

Aggravating

  • Recidivism
  • Coercion or Instigation
  • Large Corporate Size and/or Market Share
  • Degree of Planning, Covertness and Complexity of Cartel Activity
  • Obstruction (particularly when not separately prosecuted)
  • Lengthy Duration of Illegal Activity
  • Nature of the Victims (Vulnerable or Government/Public Agency)
  • High Level of Senior Officer Involvement
Mitigating
  • Cooperation with AuthoritiesAcceptance of Responsibility
  • Restitution for Victims
  • Early Termination of Conduct
  1. The weight of each factor in a given case is determined by the facts of that case. As well, depending on the circumstances of the matter, there may be other relevant considerations that the Bureau will need to take into account as an aggravating or mitigating factor.

I) Aggravating Factors

  1. The Bureau considers the following factors to be aggravating factors in its sentencing assessments and recommendations.

  2. Recidivism : The Bureau considers previous convictions as well as violations of court orders in its assessments. Recent convictions are given more weight than those of the more distant past, and will usually provide grounds for the Commissioner to recommend a more severe sentence. Parties that resume illegal cartel activities soon after a conviction will, in most cases, be subject to a recommendation of increased penalties to ensure effective deterrence.

  3. Coercion or Instigation : This may include, but is not limited to, making threats of reprisals or taking retaliatory measures against other business organizations or individuals unless they participate in the illegal conduct. Instigating or 'managing' the cartel agreement is also considered to be an aggravating factor.

  4. Large Corporate Size or Market Share : Large firms have the means to obtain legal advice and monitor corporate activities to ensure compliance with the law. Moreover, companies with a sizable market share that engage in cartel activities can more readily distort the market and cause greater economic harm.

  5. Degree of Planning, Covertness and Complexity of the Cartel Activity : The nature of the cartel and the types of activities the participants engage in to advance or to hide the cartel may well constitute an aggravating factor. Cartels are inherently covert enterprises; improper communication among cartel participants almost always requires planning and forethought to evade the law. At times, legitimate business activity is misappropriated or misused to advance the objectives of criminal cartel communications: for example, in some instances, trade association meetings have been subverted through complex planning to serve as cover for criminal conspiracies. Such instances of forethought in the planning and commission of a crime could be relevant factors in sentencing recommendations.

  6. Obstruction : "Obstruction" refers to a range of activities aimed at frustrating the investigative process, for example, through the destruction of evidence or tampering with witnesses. Obstruction is a criminal offence under both the Act and the Criminal Code.24 In many instances, cartel participants are fully aware that they are engaged in a criminal exercise. To frustrate an investigation once they become aware that their activity has been detected, they may agree on coded communications and evidence destruction protocols. These and similar actions demonstrate not only an intention to break the law, but a positive willingness to frustrate law enforcement. In this way, conduct that has as its principal object the maintenance of the covert nature of a cartel necessarily subverts the integrity of the investigative process and brings the administration of justice into disrepute. Any such action must, therefore, be vigorously deterred. To that end, the Bureau will consider such action as particularly aggravating.

  7. Lengthy Duration of Illegal Activity : The duration of a party's participation in a cartel is a consideration in sentencing that goes beyond the calculation of volume of commerce. Denunciation of illegal activity becomes more pressing the longer a party participates in a cartel. Continuation of illegal activities after becoming aware of a Bureau investigation is also an aggravating factor that justifies a recommendation that the DPP seek a more severe sentence for the accused before the courts.

  8. Nature of the Victims : The nature of the victim is a factor in sentencing. Cartel activity targeting government or public agencies or vulnerable groups such as the elderly, youth or low income population is considered to be an aggravating factor.

  9. High Level of Senior officer Involvement : Senior officers25 of a business organization have a duty to ensure that the business organization and its employees respect the law. It is considered to be an aggravating circumstance where senior officers of a business organization organize, lead, or actively participate in a cartel. Cultivating a culture of complacency o r wilful blindness to the illegal activities of colleagues and subordinates also qualifies as an aggravating element.

ii) Mitigating Factors

  1. The Bureau considers the following factors as mitigating factors.

  2. Cooperation with Authorities:26 This includes an agreement to cooperate with the Bureau in the enforcement process and to plead guilty. Where the potential accused cooperates prior to the laying of a charge, this can be a basis for a reduction in the Commissioner's sentencing recommendation to the DPP.

  3. Acceptance of Responsibility : The Bureau assesses a number of elements under this factor starting with whether the party has immediately ceased the illegal activity upon discovery. Acceptance of responsibility includes a guilty plea and can also include acknowledging the jurisdiction of a Canadian court where the accused is a foreign business organization or where the individual does not reside in Canada. It can also include the implementation of steps to detect other possible violations such as implementing a competition law corporate compliance program.

  4. Restitution for Victims : Providing restitution to victims is a mitigating factor. Restitution prior to the DPP laying a charge may justify a sentence reduction recommendation. Possible exposure to lawsuits for the recovery of damages under section 36 of the Act is not considered a mitigating factor.

III. Prohibition Orders

  1. A number of the Special Remedies in Part IV of the Act also apply to cartel offences.27 These remedies may form part of the package of sentencing recommendations put forward by the Commissioner.

  2. The Commissioner often requests that the DPP consider applying to a superior court of criminal jurisdiction for a prohibition order under section 34 of the Act. A prohibition order prohibits a person from continuing or repeating the offence or doing any act or thing directed toward the continuation or repetition of the offence. Both business organizations and individuals may be subject to a prohibition order.

  3. Under subsection 34(1), a prohibition order may be part of a penalty imposed by the court in proceedings where the person has been found guilty. The order can be in addition to any other penalties imposed by the court, and may include prescriptive terms requiring positive steps or acts to ensure compliance with the law. For example, the latter may include implementing a corporate compliance program,28 notifying clients of the prohibition order and removing individuals involved in the offence from their positions of influence regarding the business in question. Under subsection 34(2), a court may issue a prohibition order without a finding of guilt on a contested or consent basis where the court finds that a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence.

IV. Sentencing Recommendations for Business Organizations

  1. For a corporate accused, the Commissioner typically recommends a range of fines as well as a prohibition order under section 34 of the Act. Establishing a range involves setting out the low and the high end for recommended penalties after considering the sentencing factors discussed above. A range is required because of, among other things, the use of assumptions underlying some of the calculations and the inherent difficulty in assigning an exact weight to some of the aggravating and mitigating factors.

  2. Where an accused party can establish to the satisfaction of the Bureau and the DPP that it is not in a financial position to pay a fine, the Bureau may make a recommendation to the DPP for a fine reduction or an extended payment period.

V. Sentencing Recommendations for Individuals

  1. A significant deterrent in cartel cases is exposure to criminal sanctions for individuals involved in such criminal conduct. Individual liability reduces the likelihood that officers of a company lead and advance cartel activity merely on the basis of economic costs and benefits. It renders individuals vulnerable to loss of reputation, careers and even imprisonment; it brings home the real costs of committing a crime.29

  2. In many cartel cases, the Commissioner refers to the DPP evidence pertaining to both the business organization and the individuals responsible for the violation(s), accompanied by sentencing recommendations in respect of all potential accused. Reference will be made to precedential case law involving similar facts and offences. There are a number of considerations the Commissioner applies in developing sentencing recommendations for individuals. These include the degree to which the individual personally profited from the offence (including salary, bonuses and career enhancement), whether the individual has been sanctioned for participating in other cartels or in the same cartel in another jurisdiction, and whether the individual has been punished in other ways (for example, loss of employment).

  3. Ability to pay is also a relevant consideration in sentencing individuals and, as with business organizations, the Bureau may make a recommendation to the DPP for a fine reduction or an extended payment period where there is a demonstrated need.

  4. Individual accused are liable to fines or imprisonment (a maximum term of five years), or both, under the conspiracy and bid-rigging provisions of the Act. The Commissioner is more likely to recommend imprisonment for the most serious violations where the presence of one or more aggravating factors suggests that a more severe sentence for the potential accused is appropriate. For example, where an individual was the primary instigator or the leader of the cartel, used coercion or otherwise monitored and encouraged compliance with the illegal arrangement by other participants, obstructed the investigation, or where an individual personally benefited from the unlawful conduct (for example, through advancement or higher performance bonuses for increased revenue), the Commissioner may take the view that imprisonment is justified. Where the individual is a recidivist or used threats of violence to persons or property as a means of furthering the cartel, there is a pressing need for denunciation and deterrence that may best be achieved through a prison sentence.30 In these circumstances, the Commissioner would likely recommend that the DPP seek a term of imprisonment.

  5. Where mitigating factors have more persuasive influence, the Commissioner is likely to recommend to the DPP a fine and prohibition order as an appropriate sentence for an individual.

C. Leniency Considerations in sentencing recommendations

  1. The Leniency Program is an important part of the Bureau's investigation and enforcement activity. As an overarching principle, the Bureau's recommendation for leniency is directly proportionate to the contribution a leniency applicant makes to the Bureau's cartel investigations and eventual prosecutions.

I. Conditions for Eligibility

  1. "Lenient treatment" is not a novel concept in criminal matters or, indeed, in cartel offences. At one end of the leniency spectrum is the Bureau's Immunity Program, under which the first business organization or individual that qualifies under the Program's conditions (the "first in") can receive a grant of immunity from prosecution. The Bureau will recommend immunity only to the first in. Where other parties in cartel investigations provide timely and valuable cooperation to the Bureau and the DPP, they may benefit from leniency in sentencing recommendations.

  2. The Commissioner will make a lenient treatment recommendation to the DPP where the DPP has not yet filed charges against a party in a cartel offence, and where the party:

* has terminated its participation in the illegal activity;

* cooperates fully with the Bureau's investigation and any subsequent prosecution by the DPP,31 and

* admits that it has engaged in the anti‑competitive conduct which may constitute an offence under the Act and agrees, if charged by the DPP, to plead guilty and be sentenced for its participation in the illegal activity.

II. Leniency factors considered

  1. The Commissioner will consider the following factors in recommending to the DPP that a party receive lenient treatment.

  2. The timeliness of cooperation : The timeliness of an applicant's cooperation with the Bureau and the DPP is critical in determining whether and to what extent a leniency recommendation is warranted. "Timeliness" in the leniency context has two closely related components.

  3. First, in most cases, the first leniency applicant will be able to provide evidence that goes beyond duplicating or supporting evidence the Bureau already possesses. Indeed, where a party comes forward at a later stage in an investigation - for example, after others have already pleaded guilty - there may be less need of the evidence it provides and so the Commissioner will be less inclined to recommend that the DPP consider lenient treatment. Later leniency applicants run the risk that the value of the evidence they can bring forward will be marginal to the ongoing investigation and, as a result, they may not meet the requirements of the Program.

  4. Second, and more important, "timeliness" means more than simply being the first party to request leniency; it is how quickly a party cooperates fully with the Bureau's investigation. Timely full cooperation that helps the Commissioner advance the investigation is more likely to secure substantial mitigation of sentencing recommendations by the Commissioner than later cooperation, regardless of the position of a leniency applicant in the line-up.

  5. The value of the evidence : The Bureau will assess the value of the evidence provided by the applicant in terms of whether it enables the Bureau to establish that the leniency applicant and other participants committed a cartel offence in Canada.

  6. The Bureau expects that leniency applicants will conduct thorough internal investigations to locate and produce relevant and useful evidence, wherever it may be located in Canada and elsewhere. This evidence may be provided in the form of documents, witnesses or any other information that will be of assistance in pursuing the Bureau's investigation. Leniency applicants must satisfy the Bureau that they have taken all appropriate steps to locate and produce relevant evidence.

  7. Of most value to the Bureau's investigation is the quality of cooperation and evidence provided by credible witnesses. Witnesses exhibiting clear recollections of communications with competitors, those who were involved in the cartel at its inception and throughout any key changes in cartel membership, design or function, and those who had a managing role either in respect of their business organization's role or with respect to the cartel as a whole are of critical importance. Documents, particularly letters and e-mails discussing the agreement, referencing meetings or communicating on price will fall into a similar high-value category as will documents that demonstrate the effect of the cartel on the market or that clearly establish the relevant volume of commerce affected by the cartel. For international cartel cases, witnesses knowledgeable of the Canadian market, communications specific to Canada and the cartel's effects on the Canadian market, as well as documents with a Canadian focus, are of particular interest. Evidence indicating that individuals hid or destroyed evidence is likewise of very high value.

  8. Whether the party provides evidence of other cartel activities so that they qualify for Immunity Plus : When assessing the value of a party's evidence, the Bureau considers whether the information provided discloses cartel activities in other markets so as to warrant Immunity Plus status.32 If the cooperating party meets the requirements set out in the Immunity Program, the Bureau will recommend that the DPP grant immunity with respect to the new offence. As well, in respect of the original offence, the Bureau will also recommend to the DPP enhanced lenient treatment in sentencing the cooperating party, thus recognizing the value of the disclosure of the new cartel.

III. Reduction of Sentences

  1. Where a leniency applicant meets Program requirements, the Bureau may recommend to the DPP the following reductions in sentence:

First Leniency Applicant :

* the first leniency applicant that meets, and continues to meet, the conditions of the Program is eligible for a reduction of up to 50 percent of the fine that would have otherwise been recommended.

* where the first leniency applicant is a business organization, the Bureau will typically recommend that no separate charges be laid against the applicant's current directors, officers or employees, provided such directors, officers and employees agree to co-operate with the Bureau's investigation. The only exception may occur where evidence shows that the individual engaged in coercion of other participants in the offence, has been involved in other cartel offences (i.e. a recidivist) or carried out acts designed to obstruct the investigation.

Subsequent Leniency Applicants

* subsequent leniency applicants may benefit from reductions of up to 30 percent of the fine that would have otherwise been recommended. The Commissioner may consider a higher reduction rate - up to 50% - for subsequent leniency applicants where the first leniency applicant does not satisfy the leniency requirements set out in this Bulletin or where the evidence of the subsequent applicant is of exceptional value (i.e. value greater than the first leniency applicant).

  1. The rate of reduction depends on the value of each party's cooperation in a given case, determined on the basis of considerations discussed above. As has been noted, even where a party is not the first leniency applicant, substantial reductions in sentences can be realized where the subsequent leniency applicant provides valuable evidence leading to the timely conviction of other parties.

  2. Where an individual is not otherwise covered by the application of a first-in business organization they will be eligible for lenient treatment if they meet the ongoing requirements of the Program. A Bureau recommendation to the DPP for lenient treatment of individuals will typically include a substantial reduction in fines, in line with the parameters set out above. The Bureau may recommend imprisonment for particularly serious infringements where the presence of one or more aggravating factors is present.33

IV. The Leniency Process

  1. The steps required to obtain leniency are the following.

Step 1: Contacting the Bureau

  1. Where a marker34 has been granted under the Immunity Program to a party in relation to a particular offence under the Act, and the marker remains valid, the Bureau will not recommend immunity for any other cartel participant in relation to that offence.35

  2. Any other party to an offence for which a marker or conditional immunity has been granted may make a request for leniency by communicating with the Senior Deputy Commissioner of Competition, Criminal Matters, in connection with the same offence.36 Typically the request to the Bureau is made by an applicant's legal representative.

Step 2: The Proffer

  1. Following a request by a leniency applicant, the Bureau requires that the applicant provide a "proffer" in which the leniency applicant describes in detail the anti‑competitive activity for which leniency is sought and its effect in Canada. The Bureau requires the proffer as soon as possible, typically within thirty days and potentially sooner, in order to ensure the integrity of the investigative process. The proffer has two objectives at this early stage. First, it permits the Bureau to determine whether leniency will be available, and to make a preliminary assessment of the potential contribution of the applicant to the investigation and the range of a possible leniency recommendation, on the basis of criteria set out above, if the applicant were to cooperate fully. Second, and consequently, the applicant will know, as a preliminary matter, whether and to what extent lenient treatment is an option.

  2. A proffer is usually made on a without prejudice basis by the applicant's legal representative. To enable the Bureau to make an informed assessment it must include a detailed description of the illegal activity and sufficient information for the Bureau to determine whether the party qualifies for leniency. Specifically, the Bureau will need to know with detail and certainty what evidence or testimony a potential witness can give, the nature of any records the applicant can provide in the course of the investigation and subsequent prosecution, and how probative the evidence is likely to be.37

  3. The Bureau may request, on a without prejudice basis, an interview with one or more witnesses, or an opportunity to view certain documents, in order to be in a better position to assess the application, with a view to recommending that the DPP consider lenient treatment. As with the proffer, the Bureau will expect the witnesses or documents to be produced within a short time frame and a leniency applicant should begin preparing for these investigative measures as soon as it decides to make a request for leniency.

Step 3: Conditional Lenient Treatment Recommendation to the DPP

  1. The Bureau will assess a party's potential contribution to the investigation in the light of the leniency considerations set out in the previous section. Where an assessment so warrants, pursuant to the criteria of this Program, the Bureau will provide to the DPP an overview of the evidence that the witnesses from the leniency applicant are expected to provide and will recommend that the DPP consider lenient treatment for the party.

  2. A recommendation by the Bureau is conditional upon the party's ongoing cooperation with the investigation and the prosecution.

  3. The DPP retains full discretion whether to follow the Bureau's recommendation and all negotiations will be conducted by the DPP. At the same time, there is a significant degree of cooperation between the Bureau and the DPP throughout this process. Once it has received the Bureau's recommendation, the DPP will decide whether to consider lenient treatment, and if so, to what extent.

Step 4: Full and Frank Disclosure

  1. A leniency applicant must provide full, frank and truthful disclosure of all non-privileged information, records or other things in its possession, under its control or available to it, wherever located, that in any manner relate to the anti‑competitive conduct for which leniency is sought. Typically a schedule for disclosure should be established early in the process and production of information completed within this period, normally targeted to within a six-month time frame. The Bureau will often want to schedule interviews with key witnesses and view key documents very early in the process as timing is critical to the Bureau's enforcement initiatives.

  2. There must be no misrepresentation of any material facts. Witnesses will be expected to be interviewed, usually at Bureau offices, and may be called upon to testify in court proceedings. The full disclosure process will be conducted with the understanding that:

* the Leniency Program is an investigative tool for the Bureau;
* information and evidence gathered in the course of the Leniency Program will be used by the Bureau to advance its investigation of the cartel; and
* any information or evidence disclosed by a leniency applicant at this stage may be used against it, if the applicant fails to comply with its leniency obligations.

Recommendation is Conditional on Cooperation

  1. If the Bureau determines that the applicant's evidence is not consistent with the description of the evidence that was provided at the proffer stage or that the applicant has not provided full, frank and truthful disclosure, the Bureau will communicate its determination to the applicant as soon as feasible and require, where possible, that the applicant remedy the matter within either 14 days or such longer period as the Bureau may specify.
  2. The Bureau may reconsider its leniency recommendation where evidence provided through witnesses and documents is inconsistent with information provided in the proffer and may revoke its leniency recommendation to the DPP if a party consistently fails to cooperate in a timely manner. The Bureau will give 14 days notice to the applicant of any such reconsideration or revocation.

Step 5: Final Sentencing Recommendation to the DPP

  1. The Bureau will make a final recommendation for leniency in sentencing to the DPP where the applicant fulfills its obligation to cooperate, including to provide full, frank and truthful disclosure of the behaviour constituting the offence to the Bureau and an agreement to plead guilty to the offence(s). The agreement, entered into with the DPP, can be expected to include ongoing co-operation and disclosure requirements.

D. Confidentiality38

  1. The Bureau treats as confidential the identity of a party requesting leniency and the information provided by the party, except where the identity or the information has already been made public, or where disclosure is:

* required by law;
* to a Canadian law enforcement agency;
* for the purposes of the administration or enforcement of the Act;
* authorized by the party; or
* necessary to prevent the commission of a serious criminal offence.

  1. With respect to private actions under section 36 of the Act, the Bureau provides information only in response to a court order. In the event of such an order, the Bureau will take all reasonable steps to protect the confidentiality of the information, including seeking protective court orders.

E. Further information

  1. The Bureau encourages the public to take advantage of its policies and programs which facilitate conformity with the provisions of the Act.

  2. Anyone wishing to apply for leniency in cartel cases may contact:
    Senior Deputy Commissioner of Competition
    Criminal Matters Branch
    819-997-1208

For further information, visit the Bureau Website or contact the Bureau toll free at 1 800 348-5358.

Appendix I - The Cartel Provisions of the Competition Act

Conspiracy

45 . (1) Every one who conspires, combines, agrees or arranges with another person

( a) to limit unduly the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any product,

( b) to prevent, limit or lessen, unduly, the manufacture or production of a product or to enhance unreasonably the price thereof,

( c) to prevent or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance on persons or property, or

( d) to otherwise restrain or injure competition unduly,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both.

Idem

(2) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it shall not be necessary to prove that the conspiracy, combination, agreement or arrangement, if carried into effect, would or would be likely to eliminate, completely or virtually, competition in the market to which it relates or that it was the object of any or all of the parties thereto to eliminate, completely or virtually, competition in that market.

Evidence of conspiracy

(2.1) In a prosecution under subsection (1), the court may infer the existence of a conspiracy, combination, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties thereto, but, for greater certainty, the conspiracy, combination, agreement or arrangement must be proved beyond a reasonable doubt.

Proof of intent

(2.2) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it is necessary to prove that the parties thereto intended to and did enter into the conspiracy, combination, agreement or arrangement, but it is not necessary to prove that the parties intended that the conspiracy, combination, agreement or arrangement have an effect set out in subsection (1).

Defence

(3) Subject to subsection (4), in a prosecution under subsection (1), the court shall not convict the accused if the conspiracy, combination, agreement or arrangement relates only to one or more of the following:

( a) the exchange of statistics;

( b) the defining of product standards;

( c) the exchange of credit information;

( d) the definition of terminology used in a trade, industry or profession;

( e) cooperation in research and development;

( f) the restriction of advertising or promotion, other than a discriminatory restriction directed against a member of the mass media;

( g) the sizes or shapes of the containers in which an article is packaged;

( h) the adoption of the metric system of weights and measures; or

( i) measures to protect the environment.

Exception

(4) Subsection (3) does not apply if the conspiracy, combination, agreement or arrangement has lessened or is likely to lessen competition unduly in respect of one of the following:

( a) prices;

( b) quantity or quality of production;

( c) markets or customers; or

( d) channels or methods of distribution.

or if the conspiracy, combination, agreement or arrangement has restricted or is likely to restrict any person from entering into or expanding a business in a trade, industry or profession.

Defence

(5) Subsection (6) does not apply if the conspiracy, combination, agreement or arrangement

( a) has resulted in or is likely to result in a reduction or limitation of the real value of exports of a product;

( b) has restricted or is likely to restrict any person from entering into or expanding the business of exporting products from Canada; or

( c) has prevented or lessened or is likely to prevent or lessen competition unduly in the supply of services facilitating the export of products from Canada.

( d) [Repealed, R.S., 1985, c. 19 (2nd Supp.), s. 30]

Defences

(7) In a prosecution under subsection (1), the court shall not convict the accused if it finds that the conspiracy, combination, agreement or arrangement relates only to a service and to standards of competence and integrity that are reasonably necessary for the protection of the public.

( a) in the practice of a trade or profession relating to the service; or

( b) in the collection and dissemination of information relating to the service.

Exception

(7.1) Subsection 1 does not apply in respect of an agreement or arrangement between federal financial institutions that is described in subsection 49(1).

Exception

(8) Subsection (1) does not apply in respect of a conspiracy, combination, agreement or arrangement that is entered into only by companies each of which is, in respect of every one of the others, an affiliate.

R.S., 1985, c. C-34, s. 45; R.S., 1985, c. 19 (2nd Supp.), s. 30; 1991, c.45, s.547, c.46, s.590, c. 47, s.714.

Where application made under section 79 or 92

45.1 No proceedings may be commenced under subsection 45(1) against a person against whom an order is sought under section 79 or 92 on the basis of the same or substantially the same facts as would be alleged in proceedings under that subsection.

R.S., 1985, C. 19 (2nd Supp.), s. 31.

Foreign directives

46. (1) Any corporation, wherever incorporated, that carries on business in Canada and that implements, in whole or in part in Canada, a directive, instruction, intimation of policy or other communication to the corporation or any person from a person in a country other than Canada who is in a position to direct or influence the policies of the corporation, which communication is for the purpose of giving effect to a conspiracy, combination, agreement or arrangement entered into outside Canada that, if entered into in Canada, would have been in contravention of section 45, is, whether or not any director or officer of the corporation in Canada has knowledge of the conspiracy, combination, agreement or arrangement, guilty of an indictable offence and liable on conviction to a fine in the discretion of the court.

Limitation

(2) No proceedings may be commenced under this section against a particular company where an application has been made by the Commissioner under section 83 for an order against that company or any other person based on the same or substantially the same facts as would be alleged in proceedings under this section.

R.S., 1985, c. C-34, s. 46; R.S., 1985, c. 19 (2nd Supp.), s. 32; 1999, c. 2, s. 37.

Definition of "bid-rigging"

47. (1) In this section, "bid-rigging" means

( a) an agreement or arrangement between or among two or more persons whereby one or more of those persons agrees or undertakes not to submit a bid in response to a call or request for bids or tenders, or

( b) the submission, in response to a call or request for bids or tenders, of bids or tenders that are arrived at by agreement or arrangement between or among two or more bidders or tenderers,

where the agreement or arrangement is not made known to the person calling for or requesting the bids or tenders at or before the time when any bid or tender is made by any person who is a party to the agreement or arrangement.

Bid-rigging

(2) Every one who is a party to bid-rigging is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court or to imprisonment for term not exceeding five years or to both.

Exception

(3) This section does not apply in respect of an agreement or arrangement that is entered into or a submission that is arrived at only by companies each of which is, in respect of every one of the others, an affiliate.

R.S., 1985, c. C-34, s. 47; R.S., 1985, c. 19 (2nd Supp), s. 33.

Appendix II - Relevant Provisions of the Criminal Code

Purpose and Principles of Sentencing

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

( a) to denounce unlawful conduct;

( b) to deter the offender and other persons from committing offences;

( c) to separate offenders from society, where necessary;

( d) to assist in rehabilitating offenders;

( e) to provide reparations for harm done to victims or to the community; and

( f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

R.S., 1985, c. C-46, s.718; R.S.,1985, c. 27 (1st Supp.), s. 155; 1995, c.22, s.6

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

( a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing

(I) evidence that the offence was motivated by bias, prejudice or hate based on rase, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;

( b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

( c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

( d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

( e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25.

Organizations

Additional factors

718.21 A court that imposes a sentence on an organization shall also take into consideration the following factors:

  • ( a) any advantage realized by the organization as a result of the offence;
  • ( b) the degree of planning involved in carrying out the offence and the duration and complexity of the offence;
  • ( c) whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution;
  • ( d) the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
  • ( e) the cost to public authorities of the investigation and prosecution of the offence;
  • ( f) any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
  • ( g) whether the organization was - or any of its representatives who were involved in the commission of the offence were - convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
  • ( h) any penalty imposed by the organization on a representative for their role in the commission of the offence;
  • ( I) any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
  • ( j) any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

2003, c. 21, s. 14.


1In this Bulletin: "Commissioner" refers to the Commissioner of Competition; the "DPP" to the Director of Public Prosecutions; the "Act" to the Competition Act; the "Bureau" to the Competition Bureau; and the "Program" to the Leniency Program established by this Bulletin.

2 For the purpose of this Bulletin, cartel offences include conspiracy (notably section 45 but also sections 48 and 49), foreign directives (section 46) and bid-rigging (section 47). These provisions are set out in Appendix I to this document.

3 The Director of Public Prosecutions is the head of the Public Prosecution Service of Canada (PPSC), the federal government organization responsible for prosecutions on behalf of the Attorney General of Canada. The PPSC was created by the Director of Public Prosecutions Act on December 12, 2006, when Part 3 of the Federal Accountability Act came into force. It replaces the former Federal Prosecution Service of the Department of Justice. The PPSC is independent of the Department of Justice and reports to Parliament through the Attorney General of Canada.

4 Competition Act R.S.C. 1985, C. 19 (2nd Supp.).

5 See the Bureau's "Immunity Program" available online at .

6 Section 46 of the Act applies only to corporations, although an individual could be convicted of aiding and abetting the commission of such an offence.

7 Competition Bureau, Conformity Continuum Information Bulletin (Ottawa, Industry Canada, 2000) available online at .

8 Supra, note 5.

9 The Bureau has independent powers under ss. 11, 15, 16 of the Act, and as a law enforcement agency may have recourse to powers set out in ss. 183-196 and 487 of the Criminal CodeR.S., c. C-34. For further reference see Information Bulletin on Section 11 of the Competition Act(2005) and Draft Information Bulletin on Sections 15 and 16 of the Competition Act(2008) , available online at :.

10 Section 23 of the Act.

11 See Federal Prosecution Service Deskbook (created by the former Federal Prosecution Service of the Department of Justice Canada and currently applied to the PPSC), Chapter 15, online at:

12 Crown counsel from the PPSC represent the DPP in proceedings before the courts of criminal jurisdiction in Canada.

13 Supra note 11.

14 Subsection 718.3 (2) of the Criminal Codeprovides: "Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment".

15 In practice, in recent years Canadian courts have approved joint sentencing submissions of the DPP and the accused following convictions in cartel matters. A judge may depart from a joint sentencing recommendation, but is unlikely to do so except where accepting the recommendation would either be contrary to the public interest or bring the administration of justice into disrepute. The relevant provisions of the Criminal Code are reproduced in Appendix II.

16 Information on sanctions in recent cartel cases is available online at .

17 Section 718 of the Criminal Code (see Appendix II).

18 Denouncing illegal conduct expresses society's condemnation of the offender's conduct and should be a consideration in sentencing.

19In the competition context, sentencing should protect the public interest in free competition by deterring others (general deterrence) and the offender in question (specific deterrence) from committing the offence in the future. For example, fines should neither be considered 'a licensing fee' nor capable of being regarded as a probable cost of or necessary risk in doing business.

20 Section 718.1 of the Criminal Code (see Appendix II) .

21 Section 718.2 of the Criminal Code (see Appendix II) .

22 Linking fines to the affected volume of commerce is a common method for estimating the magnitude of economic harm for cartel offences in other jurisdictions. See International Competition Network, Building Blocks for Effective Anti-Cartel Regimes Vol. 1 Part III Effective Penalties, 4 th Annual Conference Bonn, Germany, June 6-8, 2005 available online at www.internationalcompetitionnetwork.org.

23 20% percent of the volume of commerce affected by the cartel is also used in the United States Sentencing Guidelines as a proxy for economic harm.

24 Section 64 of the Act and Section 139 of the Criminal Code.

25 Section 2 of the Criminal Code defines senior officer as a " representative who plays an important role in the establishment of the organization's policies or is responsible for managing an important aspect of the organization's activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer".

26 See Part C, infra, for detail regarding leniency considerations in sentencing recommendations.

27 Section 32 provides the Federal Court, on an information exhibited by the Attorney General of Canada, with the power to make a remedial order in respect of the use of exclusive rights and privileges conferred by intellectual property which prevent, lessen or limit competition unduly. In certain situations, a basis for enforcement action can arise out of an agreement between two or more parties. For more information on the application of section 32, see section 4.2.2 of the Intellectual Property Enforcement Guidelines (Ottawa, Industry Canada, 2000) available online at .

28 Competition Bureau Information Bulletin: Corporate Compliance Programs(Ottawa: Industry Canada 1997) and Draft Corporate Compliance Programs Bulletin for Public Consultation(2008) are available online at: www.competitionbureau.gc.ca

29 The importance of holding individuals responsible for their role in cartel violations and the validity of imprisonment as the ultimate punishment in order to achieve the goal of deterrence has been expressed by the Supreme Court of Canada in Thomson Newspapers v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at 514.

30 In these circumstances, the Commissioner would also consider the age and health of the individual, whether the person should be separated from the community for public safety reasons and the risk of re-offending.

31 The terms of the cooperation required correspond to those of the Bureau's Immunity Program. This includes disclosing all information relating to the offence(s) for which leniency is being sought.

32 A party that is not first to disclose conduct to the Bureau may nonetheless qualify for immunity if it is first to disclose information relating to another offence. This concept is known as "Immunity Plus". Immunity Plus encourages targets of ongoing investigations to consider whether they may qualify for immunity in other markets where they compete. Although a company does not qualify for immunity for the initial matter under investigation for which it seeks leniency, the value of its assistance in a second matter can lead to immunity for the second offence and a reduction (the "plus") in the recommended sentence for its participation in the first offence. Immunity Plus is aimed at encouraging companies already under investigation to report the full extent of their illegal activities and put all competition law matters behind them. For additional information, please see the Bureau's "Frequently Asked Questions" in respect of the Immunity Program available online at: .

33 See para. 58, supra.

34A "marker" is the confirmation given to an immunity applicant that it is the first party to approach the Bureau requesting a recommendation of immunity with respect to criminal activity involving a particular product. The marker guarantees the applicant's place at the front of the line as long as the applicant meets all other criteria of the Immunity Program.

35 This assumes that the marker will lead to a grant by the DPP of conditional immunity pursuant to Bureau's Immunity Program.

36 A recommendation for lenient treatment may be available where no marker has been granted: for example, where the Bureau already has enough evidence to refer the matter to the DPP.

37 The Immunity Bulletin ( supra note 5) at Paragraph 17 and Responses ( supranote 32) at paragraphs 26-30 set out the type of information that will be expected of an applicant.

38 For further reference see Information Bulletin on the Communication of Confidential Information Under the Competition Act(2007), available online at: www.competitionbureau.gc.ca.

Date modified: