Young Competition Lawyers Initiative of the Canadian Bar Association’s

National Competition Law Section

Presents:

AN INTRODUCTION TO CRIMINAL CONDUCT AND INVESTIGATIONS

December 4, 2008

Adam Fanaki, Special Counsel to the Commissioner of Competition

Randy Hughes, McCarthy Tétrault LLP

Overview of Cartel Enforcement in Canada

• Sections 45, 46 and 47 – elements and penalties;

• Commissioner, DPP and Criminal Matters Branch;

• Enforcement priorities of Competition Bureau.

How is Conduct Detected?

• Internal audit/corporate compliance program;

• Employee admission;

• Invitation to join ongoing cartel;

• Contact from Competition Bureau;

• Execution of search warrant or other compulsory process (in Canada or other jurisdictions).

Internal Investigation

• Review and preserve records/document preservation letter from Bureau;

• Conduct employee interviews - consider separate legal counsel;

• International coordination for multinational companies;

• Be mindful of civil litigation; • Assessment of the evidence / decision for

further action; • Need to act quickly.

Immunity Program

• Immunity application: steps and requirements;

• Substantial cooperation obligations;

• Coordination with agencies in other jurisdictions.

Leniency Program

• Competition Bureau Draft Information Bulletin on Sentencing and Leniency in Cartel Cases released for public consultation on April 28, 2008;

• Leniency application: (proposed) steps and requirements;

• Substantial cooperation obligations;

• Proposed sentencing guidelines.

International Considerations

• Coordination, cooperation and information sharing amongst agencies/ waivers;

• Jurisdictional issues/ extradition;

• Defence coordination/ negotiation of resolutions across jurisdictions;

• Assess civil litigation exposure/issues across jurisdictions.