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;
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.
The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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