Memorandum of Understanding between the Competition Bureau and the Public Prosecution Service of Canada
May 11, 2020
The Competition Bureau and Public Prosecution Service of Canada have entered into this Memorandum of Understanding to ensure effective enforcement of the Competition Act, the Consumer Packaging and Labelling Act (except as it relates to food), the Textile Labelling Act, and the Precious Metals Marking Act and the regulations thereunder.
Table of Contents
- Authorities and Responsibilities with respect to Enforcement
- 2.0 Principle
- 2.1 CB ‑ Primary Investigative Responsibility
- 2.2 CB ‑ Administrative Responsibility
- 2.3 PPSC ‑ Primary Prosecutorial Responsibility
- 2.4 Investigative Stage
- 2.5 Charge Approval Stage
- 2.6 Upon the Laying of Charges
- 2.7 Prosecution Stage
- Financial Issues
- 3.0 Cost recovery Funding
- 3.1 Joint financial planning and forecasting
- 3.2 Invoicing and Reporting
- Annual Meeting
- Organizational and Operational Issues
- Final Provisions
*Annexes to the MOU are not available as they contain confidential information and/or are subject to frequent updates.
In order to ensure effective enforcement of the Competition Act, the Consumer Packaging and Labelling Act (except as it relates to food), the Textile Labelling Act, and the Precious Metals Marking Act and the regulations thereunder (the "Statutes"), the parties have entered into this Memorandum of Understanding (the "MOU") regarding:
- The funding by the Competition Bureau (the "CB"), as represented by the Commissioner of Competition, of prosecution services provided by the Public Prosecution Service of Canada (the "PPSC"); and
- The working arrangement between the CB and the PPSC in the execution of their respective enforcement mandates.
2. Authorities and Responsibilities with respect to Enforcement
The parties agree that effective enforcement results from investigative agencies that conduct investigations of alleged offences and lay charges, and from the PPSC which provides prosecution services in relation to those investigations and charges, each exercising their respective roles independently, but co‑operatively.
2.1 CB ‑ Primary Investigative Responsibility
The CB is primarily responsible for the investigation of offences and the laying of charges under the Statutes on behalf of the government of Canada.Endnote i It exercises its mandate in accordance with statutory, common, and constitutional law, as well as its internal practices and policies.
2.2 CB ‑ Administrative Responsibility
2.2.1 Agreement to pay for prosecution services
Parliament has designated the Commissioner of Competition as being responsible for the administration and enforcement of the Statutes and the CB carries out these duties on behalf of the Commissioner. The CB consequently agrees to pay the PPSC for legal services related to investigations and prosecutions of offences under the Statutes, as well as offences under the Criminal Code and other federal statutes that relate to the enforcement of the CB's Statutes. This duty applies even where the CB did not conduct the investigation or lay the charges. The CB acknowledges that it cannot instruct the PPSC with respect to the conduct of prosecution services given the PPSC's mandate to act independently in performing its prosecution functions.
2.2.2 New initiatives
To ensure sustainable funding over time, the CB is responsible for making best efforts to ensure that the cost of prosecution services required in order to properly respond to new initiatives (for example, amendments to laws and regulations, the introduction of new legislation for which the CB may have administrative responsibility, and/or increased enforcement) is covered by its existing budgetary envelope, will be absorbed within its existing reference levels, or is identified in Memoranda to Cabinet and Treasury Board Submissions. Similarly, the PPSC is responsible for making best efforts to promptly respond to any such new initiatives with increased prosecutorial capacity.
2.3 PPSC ‑ Primary Prosecutorial Responsibility
The PPSC is responsible for the provision of prosecution services in relation to the enforcement of the Statutes on behalf of the federal Crown.Endnote ii These services are set out in the Director of Public Prosecutions Act (the "DPPA") and are performed by the Director of Public Prosecutions (the "Director"), who acts under and on behalf of the Attorney General of Canada in accordance with the DPPA, the Public Prosecution Service Deskbook (the "Deskbook"), and the constitutional imperative that the Attorney General of Canada act independently and in the public interest. The DPPA accords the Attorney General of Canada the power to issue a directive respecting the initiation or conduct of a specific prosecution or prosecutions generally (subsections 10 to 12 of the DPPA), and to assume the conduct of a prosecution (section 15 of the DPPA). The PPSC provides prosecution services in accordance with the PPSC Service Standards set out in Annex AEndnote iii.
2.4 Investigative Stage
2.4.1 Conducting the Investigation
- The CB is responsible for the investigation of offences under the Statutes, and other relevant offences under the Criminal Code, or other federal statues, on behalf of the Government of Canada. It opens, conducts, directs, controls and concludes such investigations, exercising its discretion with respect to the investigation at all stages. Its officials carry out their duties and exercise their discretion in accordance with relevant statutory, common, and constitutional law, as well as the CB's internal practices and policies.
- The CB seeks the PPSC's recommendations on charges.
- The CB preserves and organizes information and evidence collected in the course of an investigation in contemplation of prosecution before the Courts and the Crown's legal obligation to disclose. The CB preserves all evidence and maintains its continuity.
2.4.2 Immunity and Leniency
- The CB and the PPSC jointly administer Immunity and Leniency Programs (the "Programs") to uncover and stop criminal anticompetitive activity prohibited by the Competition Act and to deter others from engaging in similar behaviour. Under the Programs, the CB is responsible for investigating alleged wrongdoing and making recommendations to the PPSC to grant immunity and leniency. The PPSC is responsible for the decision to enter into an immunity or plea agreement with an applicant in accordance with the principles set out in the Deskbook. These responsibilities are discharged by the CB and the PPSC, in mutual recognition of each other's independence.
- CB investigators and PPSC prosecutors shall consult one another as necessary throughout the immunity or leniency processes to ensure that all criteria, as set out in the technical guidance document entitled "Immunity and Leniency Programs under the Competition Act" and chapter 3.3 of the Deskbook, are satisfied and that the public interest may be served by granting immunity and leniency in appropriate cases.
2.4.3 Legal Advice
- When requested by the CB, the PPSC provides legal advice in respect of prosecutions generally and in respect of specific investigations that may lead to prosecutions.
- If, in the context of advice requested under paragraph (a), the PPSC recommends against the use of an investigative tool the CB proposes to use, the PPSC will explain its recommendation, when requested.
- If the CB has concerns with services provided by the PPSC during the investigative stage, it will bring these concerns to the attention of the regional Chief Federal Prosecutor ("CFP") that has carriage of the file, or their designate.
2.4.4 Matters That Require the Involvement of a Prosecutor
The PPSC will also be involved at the investigative stage if statutory obligations or legal proceedings with respect to investigative tools, procedures or other matters require its involvement.
- The CB will manage disclosure from the beginning of the investigation and throughout the prosecution of the case until disclosure requirements are met. Prosecutors will advise CB investigators on disclosure issues and on the preparation of the necessary disclosure material as close to the outset of an investigation as is practicable and as the investigation progresses.
- The CB will ensure that it compiles and organizes the information and evidence gathered during the course of its investigation in a manner that ensures that the Crown can meet its legal disclosure obligations. The CB will act in accordance with any advice or recommendations of the PPSC in this regard.
- The CB will take note of and identify to the PPSC any information and evidence that ought not to be disclosed due to privilege, privacy issues, irrelevancy or any other reason. The PPSC will make a final determination as to whether the material will be disclosed.
2.5 Charge Approval Stage
2.5.1 When a referral can be made
Where the CB believes on reasonable grounds and has evidence that an offence has been committed, it will refer a file for charge review to the regional CFP, or their designate.
2.5.2 Content and Communication of the Referral
A referral contains:
- A prosecution report in the format of a "Report to Crown Counsel/Crown Brief," ("RTCC") containing the information and describing the evidence in the manner set forth in the model RTCC;
- A draft of the recommended charges;
- All assembled disclosure up to the date of the referral for review by the PPSC, including identification of any material that will not be disclosed due to privilege, privacy issues, irrelevancy or other reason; and
- A description of any aspects of the investigation that are continuing and the nature of the evidence that may be obtained as a result.
2.5.3 PPSC Obligations upon Referral
- Upon receipt of a referral, the regional CFP, or their designate, will assign the file to a prosecutor (the "Assigned Prosecutor") for review. The regional CFP or their designate will ensure that the CB is kept informed of progress on the review of the file in accordance with the service standards set out in Annex AEndnote iii.
- The CB may consult with the Assigned Prosecutor to seek an assessment of whether the proposed or actual charges satisfy the PPSC's decision to prosecute criteria as described in the Deskbook.
- If the Assigned Prosecutor is unable to make an assessment based upon the materials provided by the CB, he or she will make a recommendation to the CB that sets out what additional materials and measures are required. The PPSC may also recommend that the CB consider laying other charges.
- The Assigned Prosecutor advises CB investigators on the issue of disclosure and whether additional steps are needed to ensure that the Crown can meet its disclosure obligations.
- The PPSC is responsible for deciding whether to initiate, conduct, and terminate a prosecution.
- The Assigned Prosecutor makes his or her assessment of the proposed charges in accordance with the service standards set out in Annex AEndnote iii, informs the CB of its assessment and gives the CB an opportunity to discuss the assessment. The length of time necessary to complete the assessment depends upon the complexity of the matter and/or the scope of the investigation.
- In the event that the Assigned Prosecutor decides he or she will not approve charges, he or she will provide written reasons for that decision to the CB. In cases of disagreement between the CB and the Assigned Prosecutor on whether to proceed with the laying of charges, the CB will bring the issue to the attention of the regional CFP who has carriage of the file, or their designate.
2.6 Charge Approval Stage
If the PPSC approves the charges referred to it by the CB, a CB investigator will swear an information before a justice, except when the PPSC prefers an indictment.
- The CB prepares the disclosure package and provides it to the Assigned Prosecutor, who in turn reviews it and either approves it or provides recommendations regarding its finalization. The CB ensures that the disclosure package is finalized, upon the laying of the charges or preferment of the indictment. The provisions set out in section 2.4.5 apply.
- The CB recognizes that the Crown has an obligation to provide additional disclosure as soon as reasonably practicable if the CB obtains additional relevant material after the laying of charges. The CB will continue to advise the Assigned Prosecutor of such material and manage such disclosure throughout the prosecution of a CB case until the final disposition of the case.
2.7 Prosecution Stage
2.7.1 Role of the PPSC
- The Assigned Prosecutor's role during a prosecution is to lay before the trier of fact credible evidence relevant to the alleged offence. The prosecution must be done fairly, vigorously and with due regard to the law, ethics and the overriding obligation to act objectively and fairly in the public interest. It is understood that the Assigned Prosecutor continues to exercise his or her discretion independently throughout the prosecution and in line with the PPSC's "Decision to Prosecute" policy.
- Decisions regarding the prosecution reside with the PPSC. The Assigned Prosecutor will consult with and inform the CB, with reasons provided in writing if requested, of decisions made in relation to the prosecution, keeping in mind the importance of efficient conduct of the prosecution.
- Decisions regarding sentencing reside with the PPSC. The Assigned Prosecutor will consult with and inform the CB of decisions made in relation to sentencing, with reasons provided in writing if requested, keeping in mind the importance of efficient conduct of the prosecution. Except in exigent circumstances, this consultation should be ongoing so that the CB fully appreciates how the negotiations are being conducted in order that it can make informed recommendations.
- The PPSC will provide the CB with a copy of any court rulings related to the prosecution, including reasons for conviction, acquittal or sentencing, which the PPSC possesses.
2.7.2 Role of the CB
- The CB's role continues beyond the referral of a case to the PPSC. CB investigators will therefore:
- Generally assist the Assigned Prosecutor until the prosecution is completed;
- Continue to provide all relevant information throughout the prosecution phase;
- Carry out additional investigative steps if the PPSC is of the view that these are reasonably required to ensure the effective presentation of a case and fulfillment of duties;
- When required, attend and participate in interviews of prospective Crown witnesses by the Assigned Prosecutor and maintain notes of such interviews for disclosure purposes;
- Be available to review with the Assigned Prosecutors the facts of a case and disclosure issues after referral and prior to a preliminary hearing or trial;
- When required to testify, bring with them all notes and evidence in their possession relevant to their anticipated testimony;
- Make arrangements for the attendance of all Crown witnesses in court, including issuance and service of subpoenas;
- Ensure that the Crown's ongoing disclosure obligations are met by providing additional disclosure as soon as reasonably practicable if additional relevant material is obtained by the CB; and
- Prepare or assist in the preparation of agreed statements of facts to reduce the length of the trial or in contemplation of a guilty plea.
- The PPSC will provide advice as needed to assist the CB in the performance of its functions under paragraph (a).
3. Financial Issues
3.0 Cost recovery Funding
3.0.1 PPSC Funding Model
The PPSC recovers from the CB its costs for the provision of prosecution services related to the enforcement of the Statutes. These costs include those related to PPSC employees that provide prosecution services, disbursements, and private sector barristers and advocates.
3.0.2 Prosecution Services Rates
The rates used to recover the cost of providing prosecution services are those approved by Treasury Board and are applied consistently across all federal government departments and agencies. The rates for the fiscal year are set out in Annex BEndnote iii and provided to the CB on an annual basis. Annex BEndnote iii will be periodically amended in accordance with Treasury Board decisions. Costs related to civilian witnesses appearing before the court, including travel costs, are the sole responsibility of the CB and are not paid by the PPSC for reimbursement by the CB.
3.0.3 Disbursements and Extraordinary Costs
Disbursements are costs related to the provision of prosecution services. These costs may include, but are not limited to: court fees, expert witness fees, transcript fees, interpretation services, photocopying, printing, disclosure‑related costs, travel expenses and on‑line research fees.
3.0.4 Private Sector Barrister/Advocate Accounts
In accordance with subsection 7(2) of the DPPA, the Director may retain, on behalf of the federal crown, the services of barristers and, in the province of Quebec, advocates, to provide prosecution services related to enforcement of the Statutes. The barristers/advocates ("Agents") are remunerated in accordance with the rates set out in Annex CEndnote iii, and render accounts to the PPSC for services rendered in accordance with their Agreement with the Director. CB investigators review the Agents' accounts for reasonableness, certify them, and forward them to the PPSC for processing. The PPSC then pays the accounts rendered by the Agents directly. Once paid, the PPSC remits the accounts of the Agents to the CB for reimbursement.
3.0.5 Costs of policy and training sessions and other meetings
Where the CB requests the PPSC's participation, the CB pays for the prosecutors' time to prepare for and attend operational enforcement policy development sessions, training sessions, and other seminars or other meetings, at the hourly rates set by Treasury Board, as well as other related costs, such as travel expenses. The PPSC does not cost recover for any time associated with the training of its own personnel. The recovery of costs related to the PPSC's training of other investigative agencies in relation to the enforcement of the Statutes is permissible upon the agreement of the CB.
3.1 Joint financial planning and forecasting
3.1.1 Forecasting by the PPSC
During the quarter that precedes the beginning of each fiscal year, the CB identifies the cases likely to require prosecution services and communicates its forecasts to the PPSC. The PPSC and the CB meet in order to jointly plan for the next fiscal year. The PPSC provides the CB with a forecast of the resources it will require to provide prosecution services for the next fiscal year. The results of the joint planning and forecasting will be set out in a format similar to Annex DEndnote iii. This forecast will be based on the previous year's billings for prosecution services in relation to the Statutes, discussions the PPSC will undertake with the CB, the rates for prosecution services as approved by Treasury Board, and other factors the PPSC considers relevant as agreed to by the CB.
3.1.2 The CB to Provide Financial Coding and Information
Upon the completion of the forecast attached in Annex DEndnote iii, the CB provides the financial coding required by the PPSC to recover costs through Interdepartmental Settlements using the federal government's Standard Payment System. By April 30th of each fiscal year, the CB provides the PPSC with a single set of financial codes, or at most, one set per organizational unit.
3.1.3 Adjustments to Forecast
The PPSC and the CB will communicate, on an ongoing basis, about possible changes that could have an impact on the forecast described above. At CB's request, likely increases or decreases in the demand for, or supply of, prosecution services to the CB will be reflected through an adjustment to the PPSC forecast set out in Annex DEndnote iii.
3.1.4 Decrease in Demand
In the event that there is a significant reduction in the level of demand for prosecution services, the CB will give the PPSC written notice of no less than six months to ensure sufficient time to relocate affected personnel.
3.2 Invoicing and Reporting
On a monthly basis, the PPSC delivers to the CB:
- an invoice for each CB Invoice Recipient identified in Annex DEndnote iii summarizing amounts invoiced for the billing period and year‑to‑date totals, broken down by CB Service Recipient to facilitate analysis and lower‑level allocations by the CB. The CB Invoice Recipient identifies who the CB Service Recipient is;
- supporting information regarding:
- Costs based on the classification, hourly rate, and hours expended per PPSC file;
- Disbursements and barrister/advocate accounts incurred by the PPSC; and
- Adjustments to amounts billed in prior periods.
3.2.2 CB Review
The CB conducts due diligence reviews of PPSC invoices. Adjustments are made if required, after payment by the CB to the PPSC, in accordance with standard government practice for Interdepartmental Settlement.
4. Annual Meeting
In addition to financial planning and forecasting, the parties, and such representatives of other investigative bodies as agreed to by the parties, meet annually or more frequently, as needed, preferably in the first quarter of the fiscal year, to discuss enforcement under the Statutes, and any of the following subjects:
- The implementation of the provisions of this MOU;
- Legislative changes that would enhance the investigation and prosecution of cases or that may be required as a result of judicial decisions or other matters;
- Evidentiary issues, patterns of non‑compliance or trends, or prosecution issues;
- Recommendations about matters requiring action by the parties; and
- Any other relevant issue or concern.
5. Organizational and Operational Issues
5.0 Training of Investigators and PPSC Prosecutors
The CB and the PPSC may decide on training for CB investigators and PPSC prosecutors in relation to the legal and policy framework of the Statutes. In such circumstances, the CB and the PPSC will determine the organization and funding of the training.
5.1 External Communications
The DPPA provides that the PPSC communicates with the media on all matters respecting the conduct of prosecutions. This does not preclude the CB from providing general information to the media or other external entities regarding the enforcement of the Statutes in accordance with its policies. In respect of specific cases, the CB consults with the PPSC communications advisor assigned to a matter prior to making any communication to the media.
5.2 Legislative and Policy Developments
The CB will advise and consult with the PPSC on any proposed legislative or policy change, or any funding initiative that could impact upon prosecution services or other work of the PPSC.
5.3 Confidentiality and Security of Information
5.3.1 Confidential Information
Information received by one party from the other under this MOU will be treated as confidential and will only be used and disclosed in accordance with the laws of Canada.
5.3.2 Compliance with Treasury Board and other policies
Each party will ensure that their general policies and procedures for the security of information comply with the Treasury Board Security Policy and related operational standards of the party.
6. Final Provisions
6.0 Effective Date
This MOU shall come into effect at the time it is last signed.
6.1 Dispute Resolution
Any disagreement with respect to this MOU shall be resolved by the designated officials. Those officials may, for purposes of resolving a disagreement, consult with other investigators or officials in the CB and the PPSC.
This MOU may be amended at any time with the consent of the CB and the PPSC by an exchange of letters between the designated officials. The Annexes will be updated as required.
6.3.1 Termination by one party
Either party may terminate this MOU by written notice of their intention to terminate this MOU. For this purpose, the notice must be given by the designated officials. The MOU will terminate six months from the date the notice is delivered.
6.3.2 Termination by mutual consent
The CB and the PPSC may mutually decide to terminate this MOU at any time. The designated officials may effect this termination by an exchange of letters.
6.4 Nature of the Memorandum of Understanding
This MOU is an administrative agreement between the parties and is not intended to be legally binding or enforceable before the courts.
6.5 Designated Officials
The following designated officials for the CB and the PPSC, respectively, have administrative responsibility for this MOU:
For the CB
Senior Deputy Commissioner,
Cartels and Deceptive Marketing
50 rue Victoria
For the PPSC
Senior General Counsel,
HQ Counsel Group
160 Elgin Street
This Memorandum of Understanding is executed at Ottawa, Ontario, in duplicate.
Senior Deputy Commissioner,
Cartels and Deceptive Marketing
50 rue Victoria
May 7, 2020
Deputy Director of Public Prosecutions
160 Elgin Street
May 11, 2020
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