On October 17, 2005 the Competition Bureau (the "Bureau") issued a revised series of responses to frequently asked questions about the Canadian immunity program (the "Revised Responses"). The Revised Responses replace the responses issued in 2003 (the "Original Responses"). They detail the process involved in an immunity application, and the timelines and guidelines for providing information to the Bureau.
Under the Revised Responses, an immunity applicant, following confirmation that it is the first party to approach the Bureau, will have "a limited period of time, usually 30 days, to provide the Bureau with a detailed statement describing the illegal activity, its effects in Canada and the supporting evidence."
If the immunity applicant "fails to provide a proffer within 30 days, the marker can be revoked and another party may be permitted to place its marker, unless the Bureau and the first [immunity] applicant have agreed on an extended deadline." Revocation will only be made after serious consideration of all factors, and after notifying the immunity applicant.
If "an [immunity] applicant does not believe it can produce its proffer within 30 days, this must be communicated to the Bureau as soon as possible after the marker call, together with reasons for the delay. The Bureau will decide whether the delay is reasonable and, where appropriate, establish a schedule for delivery of the proffer. A delay may be warranted in complex cases particularly where multiple jurisdictions are involved or, for example, where a key witness is ill or otherwise unavailable. Paries should alert the Bureau to anticipated delays as early in the process as possible to avoid harm to other steps in the Bureau's investigation."
In addition, "a schedule for post proffer production should [typically] be established early in the process and production of information completed within a six-month period. The Bureau will not accept lengthy delays or the non-availability of witnesses based on other commitments, including commitments that arise from immunity applications in other jurisdictions."
The Bureau also is undertaking a broad review of its immunity program. It plans to initiate public consultations on such topics as confidentiality, revocation, leniency, the proffer practice, treatment of instigators, and restitution. Competition Bureau, Information Notices: "Competition Bureau Revises Responses to Frequently Asked Questions on Immunity Program" (17 October 2005), "Immunity Program: Responses to Frequently Asked Questions" (11 October 2005).
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