Earlier today, the Crown stayed charges against Nestlé
Canada Inc. and one of the company's former executives, in the
long-standing prosecution of Canadian chocolate manufacturers under
section 45 of the Competition Act. This follows the
staying of charges a couple of months ago against the other accused
parties in this matter, which included Mars Canada Inc., ITWAL
Ltd., and certain individuals. One party to the alleged conduct had
obtained immunity in the matter and another had pled guilty and
paid a fine of C$4-million. The staying of the charges against all
remaining defendants closes a case that has been ongoing since
The case is of interest in that it has provided some helpful
guidance on the Crown's disclosure obligations relating to
information received from parties that participate in the
Competition Bureau's (Bureau) Immunity or Leniency Programs.
These programs allow parties to obtain immunity from prosecution
(no fines or jail terms) if they are the first to approach the
Bureau to report criminal anticompetitive conduct, or lenient
treatment in the case of leniency applicants (such as reduced fines
and jail terms) who approach the Bureau later.
An important issue that arose in this case was whether
information in the hands of the Crown and the Bureau obtained from
immunity and leniency applicants, had to be disclosed to the
accused. Immunity and leniency applicants had provided information
to the Bureau as part of their cooperation obligations under the
Bureau's Immunity and Leniency Programs. This included
information drawn from corporate documents and from interviews that
had been conducted with officers and employees of the
In an application earlier this year, Justice I.V.B. Nordheimer
had been asked to consider whether the information provided by
cooperating parties was protected by settlement or solicitor-client
privilege or whether such considerations were overridden by the
accused's constitutional right to full disclosure. The
conclusions reached by Justice Nordheimer are consistent with the
position that the Bureau has taken for years in its Immunity and
Leniency Programs — namely, that cooperating parties can
expect that information provided by them to the Bureau will be
treated confidentially, except where disclosure to an accused is
required as part of a prosecution. Justice Nordheimer held that the
Crown's legal obligations under Stinchcombe require it to produce to
the accused all information in its possession that is not clearly
irrelevant. Thus, cooperating parties cannot expect that such
information will be protected from disclosure in the event that
other parties to the alleged conduct are prosecuted.
This case represents an important reminder for businesses.
Although contested prosecutions in Canadian competition cases are
rare, immunity and leniency applicants must appreciate that the
information they produce to the Bureau may ultimately be disclosed
to the accused, notwithstanding the confidentiality assurances that
apply when the information is originally provided.
Blakes represented Nestlé Canada Inc. in this
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