The Competition Bureau has substantial investigative powers, the most intrusive of those being the power to conduct searches of premises. If it has reason to believe that the Competition Act has been contravened, the Bureau can obtain and execute search warrants to enter and search premises and seize all relevant documents and records without any prior warning.
Search warrants must be court-ordered, but the target of the searches does not receive notice. The target's first knowledge of the warrant comes with the arrival of the Bureau officers to conduct the search.
A search can cause considerable disruption to the business activities of a company. This article sets out guidelines on how to respond if Competition Bureau officers arrive at your offices with a search warrant.
- When the Bureau officers arrive at the premises and present the warrant, call legal counsel immediately. Advise the officer in charge that he or she may secure the premises, but request a delay in the start of the search until legal counsel arrives. The Bureau officers will normally provide a short period of time for legal counsel to attend at the premises before commencing the search.
- Examine the warrant carefully to ensure that it accurately identifies the premises to be searched and that other information contained in it is correct. Also, verify that the individuals who propose to conduct the search are named in the warrant.
- Discuss with the Bureau officers the arrangements for the search, i.e., hours of the day, estimated length of search, and number of officers to be present on the premises.
- In addition to documents, the search warrant may also authorize computer searches and the seizure of the relevant electronic information. Searching officers are therefore entitled to use all or part of a computer to review and seize the data described in the search warrant. Arrangements should be made with respect to the operation of the company's computer system if specified in the warrant.1
- A conference room or other isolated area should be made available where the Bureau officers can meet to review documents.
- Advise employees that they are not obliged to engage in conversations with the Bureau officers about the alleged activities or the existence or location of relevant documents, and that they are entitled to seek the advice of counsel in response to such requests. Employees should inform counsel of any questions asked or comments made by the Bureau officers during the search. Employees must not hinder the search, but they do not have to volunteer information or assistance. Employees should be advised that they must not remove, destroy or delete any materials, documents or records. The penalties for obstructing an investigation can be severe. This may be communicated to employees by disseminating a memorandum or e-mail to all employees from in-house counsel.
- Legal counsel should supervise the search to ensure that documents to be reviewed by Bureau officers are within the scope of the warrant in time and subject, and to raise any issue as to solicitor/client or other form of legal privilege. Such issues can normally be resolved at the time, but sometimes resort must be made to the formal procedures in the Competition Act.
- Request from the Bureau officer responsible for the search or the Public Prosecution Service of Canada (PPSC), a copy of the sworn Information used to obtain the warrant. This may be provided while the search is ongoing — or, if disclosure of the Information might prejudice the search — afterwards. The Information should be reviewed not only to obtain factual information, but to determine if there are challenges available to the issuance of the warrant.
- Attempt to make arrangements with the Bureau officers for copying of the documents to be seized before the officers leave the premises. The officers are not required to permit this but if you are reasonable with them, and there are not too many documents, they may be cooperative.
- Identify documents reviewed by Bureau officers but not seized. Some could be helpful in a defence to possible proceedings under the Competition Act.
- Keep a written record describing the search, including:
- a list of the name and position of each Bureau officer involved in the search;
- a list of the areas searched, and a note of the order in which these areas were searched;
- the time the search began and ended for each area;
- a list of the names and titles of employees approached or questioned by the officers;
- a summary of requests to the officers (as discussed above);
- a summary of questions the officers asked, and of their statements during the search;
- a detailed description of any activity you consider to be outside of the scope of the search warrant, and a list of the name and position of each officer involved in any such activity; and
- an inventory of all documents, materials or property seized by
- Mark all notes regarding the search (including the written record described in #11) as "Privileged and Confidential — for the Advice of Legal Counsel."
- Meet with legal counsel to review any matters that may have arisen during the course of the search, and begin the process of obtaining information to be used in dealings with the Bureau and the PPSC or ultimately in defending proceedings that may be commenced under the Competition Act.
1.Where authorized by the warrant, the Bureau may search the computer system and either make a copy of or print the data described in the warrant on the premises or produce an image of, or seize, the computer system on the premises and later examine and extract data described in the warrant off-site. Recently, it has become the Bureau's practice to conduct the off-site examination of the image of the computer system and extraction of electronic data. When this off-site examination occurs, the Electronic Evidence Unit of the Bureau will select the data it believes is within the scope of the warrant from the image made on the premises and provide that selection to the Bureau's investigative team, subject to a review by the company's counsel to ensure that privileged documents are not transmitted. This process can take several months or more where there are a number parties and a significant volume of electronic records to be reviewed. The legality of this process has not yet been determined by the courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.