Memorandum of Understanding between the Commissioner of Competition and the Director of Public Prosecutions
May 13, 2010
With respect to the conduct of criminal investigations and prosecutions of offences under the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act.
Whereas the Director of Public Prosecutions (DPP) and the Commissioner of Competition (Commissioner), the Parties to this Memorandum of Understanding (the Parties), have separate responsibilities within the criminal justice system of Canada, each Party recognizing the other's independence in performing their respective functions and duties;
Whereas the Office of the Director of Public Prosecutions, referred to as the Public Prosecution Service of Canada (PPSC), has a section composed of prosecutors (the Competition Law Section) specifically assigned to prosecutions of offences under the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act, and the Precious Metals Marking Act (the Acts);
Whereas the Commissioner carries out her responsibilities with the support of the Competition Bureau (Bureau), which is composed of authorized representatives, including managers, competition law officers (officers), and support staff;
Whereas the Parties recognize that their roles are interdependent and they need to work together in close consultation in support of one another's mandates;
Whereas it is understood that effective collaboration can be based only on a clear understanding of one another's roles, mutual respect, and trust;
Whereas federal prosecutors are guided by the principles articulated in the Federal Prosecution Service Deskbook (FPS Deskbook).
Therefore the Parties agree as follows:
1. Purpose of the Memorandum of Understanding and governing principles
1.1 The purpose of this Memorandum of Understanding (MOU) is:
- to provide a clear understanding of the Parties' respective roles and responsibilities at the investigative and prosecution stages of a case under the Acts; and,
- to improve the efficacy of prosecutions and to implement strategies to enhance the quality of investigations and of the cases presented at trial.
1.2 As a best practice, each Party undertakes to consult the other regarding any decision that is likely to have an impact on a prosecution emanating from a Bureau investigation.
1.3 The Parties undertake to disseminate this MOU throughout their respective organizations so that prosecutors, paralegals, managers, officers and support persons are aware of the principles it establishes and the resolve of the Parties to achieve its purpose.
2. Roles and responsibilities
2.1 In the exercise of their respective mandates the Parties respect one another's independence while recognizing the need to work together toward common goals.
2.2 The Bureau's responsibilities include the investigation of suspected offences under the Acts, the referral of evidence to the PPSC, and the making of recommendations on the charges to be laid, the appropriate sanction(s) to be imposed, and the granting of immunity and leniency.
2.3 The PPSC is responsible for: prosecutorial advice, both general and specific during the investigation; the decision, in accordance with FPS Deskbook principles, as to whether charges should proceed, the wording of charges, and the choice of persons to be charged; and the prosecution of charges laid.
Bureau: Roles and responsibilities at the investigative stage
2.4 The primary mandate of the Bureau is to enforce and administer the Acts. The Acts are designed to – among other objectives – maintain and encourage competition in Canada, and to provide consumers with competitive prices and product choices.
2.5 Officers commence and conduct investigations pertaining to the Acts. They are responsible for identifying the object and targets of an investigation. They also determine the structure, scope, and duration of those investigations, and the means to be used to carry them out. Under the direction of the Commissioner, officers exercise full discretion with respect to the conduct of investigations.
2.6 The Bureau will assign a lead officer at the opening of an investigation. The lead officer and assigned counsel will be one another's primary point of contact on the file and will keep one another updated as to developments. Officers assigned to the file will keep one another updated as to developments.
2.7 Officers gather evidence, and ensure its preservation. They organize the information and evidence collected over the course of an investigation, in anticipation of litigation and with a view to the Crown's disclosure obligation in accordance with the Briefing Note on Disclosure and with any other directive or guideline of the DPP.
2.8 As may be reasonable, officers will seek the advice of counsel in the PPSC Competition Law Section, assigned counsel from a PPSC regional office or, where appropriate, designated agents of the DPP as defined in paragraph 2.17 of this MOU (counsel) on any legal issue likely to impact an investigation or any subsequent prosecution. Officers will also refer to the relevant Practice Notes issued by the Competition Law Section (PPSC).
2.8.1 More specifically, officers will consult counsel in relation to the following:
- When seeking a search warrant under sections 15 and 16 of the Competition Act, or a search warrant, a general warrant, tracking warrant, or dialled-number recorded warrant under the Criminal Code;
- When seeking judicial authorization for electronic surveillance pursuant to Part VI of the Criminal Code;
- When seeking an order under section 11 of the Competition Act, or a production order under sections 487.012 and 487.013 of the Criminal Code;
- When seeking a special search warrant or a restraint order pursuant to sections 462.32 and 462.33 of the Criminal Code, dealing with suspected proceeds of crime;
- When seeking a sealing order pursuant to section 487.3 of the Criminal Code;
- On matters relating to the granting of immunity or leniency;
- On matters involving undercover or surveillance operations;
- Regarding the preparation of a disclosure package;
- When drafting a Report to Crown Counsel (RTCC) that summarizes the evidence gathered during the investigation, to ensure that it addresses all applicable PPSC legal and policy requirements;
- On claims of solicitor-client privilege; and,
- When retaining an expert.
2.9 In seeking any legal advice, managers and officers will inform counsel of the existence of legal advice they have already received on a given matter from another counsel, of requests for advice on the same or related issues of which they are aware, and of all relevant facts. The above information should be provided to counsel in writing to prevent any misunderstanding.
2.10 When the Bureau formally refers matters together with an RTCC pursuant to section 23 of the Competition Act for such action as warranted, it will endeavour to do so as expeditiously as possible, consistent with its enforcement priorities.
Bureau: Roles and responsibilities at the prosecution stage
2.11 Officers are responsible for providing ongoing, timely support and assistance to counsel during the course of post-referral proceedings until the prosecution is completed. More specifically, they will:
- Preserve evidence and all inculpatory and exculpatory information obtained, and maintain continuity and security of all evidence;
- Provide and identify to counsel all relevant information pursuant to disclosure obligations. The ultimate determination of relevance is up to counsel;
- Be available to review with counsel the facts of the case and disclosure issues;
- Take all necessary steps to ensure the availability of witnesses;
- Attend pre-trial interviews of prospective witnesses by counsel, and keep notes of such interviews for disclosure purposes;
- Attend court proceedings, when required;
- Carry out additional investigative tasks that are reasonably required by counsel.
2.12 Officers will continue to provide all relevant evidence, reports and briefs discovered or produced throughout the prosecution phase.
2.13 Officers, when called as witnesses, shall bring with them all notes and evidence in their possession relevant to their anticipated testimony.
2.14 The Bureau is responsible for making arrangements for the attendance of all Crown witnesses in court, expert reports, witness fees, and all litigation expenses, in accordance with applicable Treasury Board guidelines and Rules of Court.
Plea and resolution discussions
2.15 The Bureau is responsible for fully briefing counsel of the results of its investigation and identifying available evidence prior to the commencement of any plea and sentence negotiations. The briefing must provide a synopsis of the available evidence, both documentary and testimonial. The Bureau is responsible for making recommendations indicating what it believes to be an appropriate sentence, together with its rationale based on the Bureau's Information Bulletin on Sentencing and Leniency in Cartel Matters.
Prosecutors: Roles and responsibilities at the investigative stage
2.16 Pursuant to subsection 3(3) of the Director of Public Prosecutions Act, the DPP is responsible for carrying out varied duties, which either involve or are related to the prosecution of offences. Broadly speaking, federal prosecutors carry out the criminal litigation responsibilities on behalf of the DPP, namely, the prosecution of infractions and all prosecution-related functions. The PPSC acts as prosecutor in all matters prosecuted by the DPP on behalf of the Crown. The PPSC ensures that a consistent national approach is taken to issues arising in prosecutions under the Acts.
2.17 The DPP may delegate his or her duties to private sector counsel or to counsel in the Department of Justice, Competition Bureau Legal Services (CBLS), and these counsel may act as an agent of the DPP only when they have been designated as such by the DPP for a specific case.
2.18 A prosecutor's role is to provide assistance and timely and strategic legal advice at the outset and during the course of an investigation, in accordance with the FPS Deskbook.
2.19 The PPSC, at the Bureau's request, will assign counsel to provide advice and assistance. The lead officer and assigned counsel will be one another's primary point of contact on the file and will keep one another updated as to developments. Where more than one counsel is assigned to the file, a lead counsel will be designated. Counsel assigned to the file will ensure that they update one another as to developments.
2.20 If requested, counsel may provide advice in the development of Bureau policies and programs in the criminal field (e.g., the Immunity Program) and on any related questions; draft and update practice and advisory notes (e.g., search and seizure, disclosure, immunity and plea agreements); and periodically provide information sessions and training programs to officers.
2.21 Counsel will help shape the investigation in the early stages by advising officers on the nature of the evidence required, and by providing input into the development of the case, the use of investigative powers, the adequacy of the evidence and the quality of the witnesses.
2.22 Counsel will assist the Bureau with any investigative procedure in a timely way. A refusal by a prosecutor to adopt a procedure, where approval by the PPSC is required, will be explained to the Bureau.
2.23 Counsel will provide assistance relating to:
- Any request of an officer on any legal issue likely to impact an investigation or any subsequent prosecution.
- Court applications made by officers. Counsel will review information to obtain search warrants, production orders, sealing orders and wiretap authorizations, among other applications. Counsel may also suggest modifications for the sake of clarity or accuracy, and assist in processing such applications.
- The preparation of the RTCC, at the earliest stage, to ensure that it meets all legal and policy requirements.
- The preparation of witness interviews. Counsel may attend witness interviews as needed.
2.24 Timely legal advice will be provided to officers or, alternatively, to their supervisors to ensure that investigation techniques and procedures are consistent with the rules of evidence and constitutional standards. Where such advice differs from that set out in the practice and advisory notes, counsel will explain any discrepancy, if requested.
2.25 When an officer seeks legal advice, counsel will consult with the officer to determine whether legal advice is necessary, the specific legal question to be answered, and the form that the advice should take. If the legal advice is to be provided in the form of a written legal opinion, counsel should consult with the officer before the opinion is finalized so as to ensure that all relevant facts have been set out and all relevant legal issues have been considered and answered.
2.26 Bearing in mind the independence of prosecutors and the need to assess cases on their own particular facts, counsel nevertheless recognizes the benefit of ensuring consistent advice and will strive to be consistent with that provided by other federal prosecutors.
Prosecutors: Roles and responsibilities at the prosecution stage
2.27 Counsel is responsible for the authorization and the prosecution of charges in court and for the conduct of all plea and resolution discussions. Counsel are agents of the DPP and prosecute offences on behalf of the Crown; they are bound by the Constitution, statute law, jurisprudence, and the rules of the relevant provincial or territorial law societies.
2.28 Upon the referral of evidence by the Bureau to the PPSC, counsel will review the evidence in the case in accordance with the "Decision to Prosecute" policy of the FPS Deskbook. This review is a crucial component of the exercise of independent prosecutorial discretion.
2.29 As far as reasonably possible, a decision to prosecute is to be taken by an arms-length counsel not originally assigned to the investigation who consult his or her colleagues assigned to the investigation before deciding independently whether or not to lay charges.
2.30 Counsel will, in a timely way, review all evidence referred, and in consultation with the officers, where applicable:
- Determine the charges to be sworn and the persons to be charged;
- Lay an information seeking a prohibition order pursuant to subsection 34(2) of the Competition Act;
- Make an application for the issuance of an interim injunction pursuant to section 33 of the Competition Act;
- Make a recommendation of further investigation;
- Estimate the resources needed and the cost of the prosecution; and,
- In all events, inform the Bureau of his or her decision as soon as possible and provide an explanation in the case of a refusal to lay charges.
2.31 The decision to prosecute is an ongoing process that continues throughout the prosecution. Counsel shall determine the sufficiency of evidence and evaluate whether a prosecution is in the public interest. In doing so, counsel shall exercise independent judgment and should consult with the Bureau to determine whether the prosecution is in the public interest.
2.32 The prosecutor's role is not to obtain a conviction but to lay before a trier of fact credible evidence relevant to an alleged offence. This must be done fairly, excluding any notion of winning or losing. However, if counsel elects to pursue a prosecution, it is done vigorously and to the best of his or her ability, with due regard to the law, legal ethics, his or her role as an officer of the court, and the overriding obligation to act objectively and fairly in the public interest. Further, when exercising his or her discretion, counsel must act independently, fairly, objectively and impartially.
2.33 Counsel is responsible for the conduct of all plea and resolution discussions. Counsel must ensure that the conduct meets the standards articulated by the FPS Deskbook. Counsel will consult the Bureau to elicit its views as to the appropriateness of any proposed plea and sentence or other resolution, and will consider the Bureau's comments. This consultation should be ongoing so that the Bureau fully appreciates how the negotiations have been conducted in order that it can make a more informed recommendation. If a plea agreement is reached, counsel will convey to the officers the substance of the agreement and the reasoning behind it. Usually officers are present and provide assistance to prosecutors at plea and sentencing negotiations.
2.34 Counsel will consult with the Bureau on questions of staying or withdrawing charges, and on decisions to appeal. Counsel will provide an explanation of these decisions to the Bureau, if requested.
2.35 Counsel has an obligation to ensure that witnesses, including officers, are prepared adequately prior to testifying and that notices required pursuant to the rules of evidence have been served in a timely manner.
3. Immunity — Leniency
3.1 To uncover and stop criminal activity pursuant to the Competition Act, the Bureau has put in place the Immunity Program that sets out the Bureau's practices, its role and the role of the PPSC in the immunity process, the conditions under which the Bureau will recommend that the PPSC grant immunity and the responsibilities of the immunity applicant. The Immunity Program is one of the Bureau's most effective tools for detecting and investigating criminal activities prohibited by the Competition Act.
3.2 The Bureau and the PPSC recognize that, in respect of serious criminal activity under the Competition Act, it is in the public interest to offer immunity from prosecution to a participant who is willing to terminate its participation in the illegal conduct and fully cooperate with the Bureau and PPSC.
3.3 The Bureau's Leniency Program complements the Immunity Program and aims at encouraging other participants in an illegal cartel to acknowledge their actions and cooperate with the Bureau and the PPSC
3.4 The Bureau and the PPSC recognize that certainty, predictability of results and transparency are crucial to the effective operation of the Immunity and Leniency Programs.
3.5 The management of the Immunity and Leniency Programs, including such matters as acceptance of markers, taking of proffers, interviewing of witnesses and the collection of documentary evidence, is the responsibility of the Bureau.
3.6 A recommendation for immunity or leniency by the Bureau to the PPSC must fully set out the relevant considerations in order to permit counsel to exercise independent discretion while referencing as complete a record as possible.
3.7 The decision to grant immunity or leniency upon a recommendation by the Bureau, or otherwise, rests solely with counsel who exercises his or her independent discretion in accordance with the principles articulated in the FPS Deskbook. However, the Bureau's recommendation to the PPSC is given due consideration.
3.8 Officers and counsel shall consult one another as necessary throughout the immunity or leniency processes to ensure that all criteria are satisfied and that the public interest may be served by granting immunity and leniency in appropriate cases.
3.9 When counsel agrees with the recommendations of the Bureau, he or she must obtain approval from his or her manager to enter into an immunity agreement, or plea agreement, that sets out the terms by which the participants to the immunity or plea agreement will be bound. A standard immunity agreement form or plea agreement form must be used in this regard. This process will be guided by the principles set out in paragraph 3.4.
3.10 All plea and sentence resolutions concluded prior to charges being laid, and where appropriate after charges are laid, shall be reduced to a written plea agreement in the approved form, which shall include a statement of admitted facts.
3.11 Any deviation from the standard immunity agreement form or plea agreement form must be approved by the Director of the CLS, and notification given to the relevant Deputy Commissioner.
3.12 The Bureau is responsible for assessing whether the immunity or leniency applicant is in compliance with the terms of an immunity or plea agreement and to provide counsel with the evidence supporting a recommendation that immunity or leniency be revoked.
3.13 The decision to revoke immunity or leniency rests solely with counsel who will give due consideration to the Bureau's recommendation for revocation. Counsel shall exercise independent discretion when considering revocation or any other appropriate remedy, in accordance with paragraph 35.8 of the FPS Deskbook, after examining the terms of the agreement and the manner in which it was breached.
4. Disclosure protocol
4.1 Prosecutors must act in accordance with the disclosure policies of the PPSC. In all prosecutions, the Bureau will be responsible for ensuring timely and complete disclosure in accordance with the Advisory Note on Disclosure.
4.2 A designated Bureau officer (the disclosure officer) will ensure that complete disclosure is available to each accused at the time of first appearance, in a form that is acceptable to PPSC counsel and in compliance with the Advisory Note on Disclosure.
4.3 The disclosure officer will provide supplementary disclosure to counsel as soon as reasonably practicable.
4.4 The disclosure officer will endeavour to bring to the attention of counsel any material that is subject to legal privilege, such as solicitor-client privilege or informer privilege. The final determination regarding whether a privilege applies with respect to disclosure is the responsibility of counsel.
4.5 Disclosure will generally be made electronically.
4.6 The Bureau is responsible for the costs of disclosure. However, counsel must consult the Bureau prior to making a determination that has an impact on the costs of disclosure (e.g., software to be used). Counsel will consider the best way to structure disclosure from the outset of an investigation so as to minimize cost and the duplication of effort.
4.7 Counsel has an ongoing role to give advice and consult with the officers with respect to the nature of the evidence and information that is required as part of disclosure. The final responsibility for reviewing disclosure and determining the information to be disclosed lies with counsel.
5. Designated officials
5.1 The following designated officials will have overall administrative responsibility for the implementation of this MOU.
For the Competition Bureau:
Senior Deputy Commissioner of Competition, Criminal Matters Branch
Deputy Commissioner of Competition, Fair Business Practices Branch
For the PPSC:
Director of the Competition Law Section, Public Prosecution Service of Canada
6. Confidentiality and security of information
6.1 Subject to the provisions of this MOU, the Competition Act, the Access to Information Act, the Privacy Act, and any other applicable Act of Parliament, the information shared between the Parties under the terms of this MOU will be treated as confidential, and will be protected from further disclosure. The shared information can be used only for the specific purpose for which it is provided, and will not be passed on to any third party without the written consent of the Party from whom it originated. In the event of a request for disclosure of information under the Access to Information Act or the Privacy Act, the Party receiving the request agrees to consult with the ot her Party.
6.2 Each Party will ensure that its procedures for safeguarding information subject to this MOU comply with its operational standards and government security policy.
7. Dispute resolution
7.1 Any dispute arising from this MOU shall be referred to the designated officials noted in Part 5 of this MOU for resolution. If these officials are unable to resolve the dispute, it shall be referred to the Commissioner of Competition, and the Deputy Director for resolution.
8.1 The Parties agree to review this MOU as required.
9.1 This MOU may be amended at any time with the consent of the Parties. Such amendments may be effected by an exchange of letters between the Commissioner of Competition and the Deputy Director.
10. Effective date and termination
10.1 This MOU shall come into effect on the date when it is last signed.
10.2 Either of the Parties may terminate this MOU upon six months written notice to the other Party. Such notice shall be given by either the Commissioner of Competition or the Deputy Director.
11. Nature of the MOU
11.1 This MOU is an administrative understanding between the Parties. It is not intended to be legally binding or enforceable before the courts, nor is it designed to alter the pre-existing obligations, responsibilities, duties, or entitlements of either Party as may be defined by statute, regulation, or otherwise.
In Witness Thereof, this Memorandum was signed in duplicate, each copy being equally authentic
For the Competition Bureau
Commissioner of Competition
For The Public Prosecution Service Of Canada
Acting Deputy Director of Public Prosecutions
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