On February 4, 2015, the Ontario Superior Court of Justice ruled that neither solicitor-client nor settlement privilege prevented the disclosure to accused persons of relevant factual information provided to the Crown by applicants under the Competition Bureau's cartel Immunity and Leniency Programs. In arriving at this conclusion, the Court found the following:

  • Any solicitor-client privilege that may attach to information gathered by counsel to an immunity or leniency applicant is waived once that information is disclosed to the Bureau and the Crown (being adverse parties) in return for immunity or leniency.
  • Settlement privilege does not attach to information provided by an immunity or leniency applicant to the Crown, as such information is provided by the applicant with the clear knowledge that the Crown will use such information to prosecute other alleged wrongdoers, including by calling the immunity or leniency applicant to give evidence at trial.
  • Even if information provided to the Crown under the Immunity and Leniency Programs were subject to settlement privilege:
    • The privilege was waived as the immunity and plea agreements reached with the Crown expressly contemplated disclosure of factual information received from the applicants pursuant to the Crown's disclosure obligations in criminal proceedings; and
    • An exception to the privilege is warranted because an accused's constitutional right to make full answer and defence trumps the public interest in encouraging settlement of cartel matters through offers of immunity and leniency. In any event, disclosure in subsequent criminal proceedings of information furnished to the Crown by immunity and leniency applicants does not in fact discourage applicants from coming forward.

The Court's ruling confirms that persons accused of criminal offences under the Competition Act as a result of investigations involving the Bureau's Immunity or Leniency Program will enjoy the full scope of Crown disclosure, including all relevant factual information obtained by the Crown from immunity and leniency applicants prior to execution of an immunity or plea agreement. Such disclosure may, for example, include exculpatory evidence or evidence about the credibility of Crown witnesses that could be of assistance in defending the prosecution.

Davies acts as counsel to one of the accused in this matter.

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