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Part VII
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 35

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35 IMMUNITY AGREEMENTS

35.1 Introduction

Those who have violated the law should be held accountable for their crimes. However, some crimes can only be proved by the testimony of witnesses who are implicated in the same crime or in some other criminal activity. Emphasis by investigating agencies on the investigation of the upper echelons of criminal organizations has heightened the need to rely on the evidence or assistance of co-operating accomplices, or other persons with outstanding charges, to prove offences.

In a 1995 decision of the Privy Council ¹ Lord Mustill stated:

It has been recognised for centuries that the practice of allowing one co-defendant to “turn Queen’s evidence” and obtain an immunity from further process by giving evidence against another was a powerful weapon for bringing criminals to justice, and although this practice ‘has been distasteful for at least 300 years to judges, lawyers and members of the public’, and although it brings with it an obvious risk that the defendant will give false evidence under this ‘most powerful inducement’, the same very experienced court which so stigmatised this practice was willing to accept that it was in accordance with the law. ²

35.2 Purpose of the Policy

The general purpose of this policy is to emphazise the great care that must be taken in dealing with these complex and sensitive issues. More specifically, the policy seeks to:

1. set out the applicable criteria in determining whether the Crown should enter into an immunity agreement with someone who may otherwise be exposed to criminal prosecution;³
2. provide guidelines for Crown counsel on the proper handling of co-operating information-providers⁴ both in and out of court;
3. differentiate the role of Crown counsel from the role of the investigating agency in the immunity-seeking process.

35.3 Definition of “Immunity Agreement”

The term “immunity agreement” in this policy refers to any agreement by the Crown to refrain from prosecuting someone for a crime or crimes, or to terminate a prosecution (including appeals), in return for the provision of testimony or other valuable information, co-operation or assistance.

A checklist of issues to address in the agreement, and a sample immunity agreement, are included as Appendices “A” and “B” to this policy.

35.4 Immunity Devices Available in Canada

The legal basis of a power to grant immunity despite the absence of any express provision in the Criminal Code authorizing the practice has been judicially recognized.⁵

There are various ways by which immunity can be conferred by the Crown under Canadian criminal law.

35.4.1 The Power to Stay Proceedings

An attorney general has the statutory power to stay existing criminal proceedings in individual cases involving appropriate fact situations.⁶ Pursuant to section 579 of the Criminal Code, the Crown must notify the clerk of the court of the recommencement of the stayed proceedings within a period of one year from the date of the entry of the stay. Crown counsel must be conscious of this limitation in drafting immunity agreements, particularly where the terms of the agreement require that the information provider do something or refrain from doing something during that period.

The authority of the Attorney General of Canada to stay proceedings does not include the power to stay prosecutions conducted by provincial attorneys general. Accordingly, the agreement must be carefully worded so as to make the extent of the immunity clear and unambiguous. Counsel for the information-provider should be referred to the provincial attorney general if his or her client desires immunity from offences prosecuted by the provincial attorney general. Crown counsel may respond to a request for consultation from the provincial representative, or initiate consultation with provincial authorities where appropriate.

35.4.2 Immunity from Future Prosecutions

An attorney general is also entitled to provide an assurance of immunity against future prosecution⁷: a) for crimes for which the information-provider has already been charged ⁸; b) for offences that the information-provider has already committed, but for which no charges have yet been laid.

35.4.3 Letters Patent

By virtue of a little-known (and, evidently, little-used) document entitled “Letters Patent Constituting the Office of Governor General of Canada”⁹, the Queen, through the Prime Minister, may empower the Governor General to grant immunity from prosecution to any accused who provides information leading to the conviction of a confederate.¹⁰

35.4.4 Investigative Assistance Agreements

Traditionally, requests for immunity have been made to the Attorney General upon completion of the investigation. Increasingly in recent years, however, Crown counsel and investigative agencies have had far greater contact during investigations in an effort to enhance the ability of the state to effectively fight crime, and present prosecution cases that are ready to proceed efficiently from the time charges are laid .¹¹

With respect to offers of immunity, this may require that Crown counsel be involved in discussions with the investigating agency before an investigation is complete in order to offer assurances to persons who may have valuable information to provide to the investigating agency. So, for example, persons may be willing to give details of their knowledge of criminal activity in audiotaped or videotaped interviews, where they receive assurances that provision of such information will not prejudice their legal interests.

This form of immunity agreement is referred to as “use immunity”. It differs somewhat from immunity agreements discussed elsewhere in this policy in that it focuses on the uses that may be made of the information provided, rather than acts which will not be prosecuted. It is appropriate for Crown counsel to engage in discussions with investigating agencies, and sign formal agreements which bind the Attorney General. Such agreements are called “Investigative Assistance Agreements” and a sample is found as Appendix “C” to this policy.

Investigative Assistance Agreements must be approved by Crown counsel in consultation with their FPS Director.¹² A copy of such agreements should be the retained by the Director.

35.4.5 Provisional Guarantees of Immunity for Competition Act Offences

Another form of immunity is used for investigations under the Competition Act. Pursuant to the Competition Bureau's Immunity Program, persons or corporations with information concerning anti-competitive business practices such as bid-rigging and price maintenance are encouraged to make disclosure to the Bureau.

As part of the Immunity Program, the Bureau may wish to recommend that a particular information-provider (person or corporation) be given a provisional guarantee of immunity in order that the Bureau may obtain and investigate information provided to it. The Bureau makes a recommendation to Crown counsel in this regard. The recommendation must set out the relevant considerations as fully as possible in order to permit Crown counsel to exercise independent discretion.

Where Crown counsel agrees with the recommendation, and obtains approval from the FPS Director, a provisional guarantee of immunity may be provided. Sample agreements are found as Appendices “D” and “E” to this policy. The form of the provisional guarantee, whether it be a signed agreement or a letter from Crown counsel, may vary according to the circumstances of the case.

Where the information-provider fulfills the terms contemplated by the provisional guarantee of immunity, the Bureau may wish to recommend that immunity be provided. Again, Crown counsel will exercise independent discretion in considering such a recommendation, and obtain the approval of the FPS Director. Samples of such an immunity agreement are found as Appendices “F” and “G” to this policy.

35.5 The Decision to Offer Immunity

This policy is based on a recognition that it is sometimes in the public interest to provide immunity from prosecution to persons who are willing to give material evidence concerning the commission of an offence. Immunity from prosecution should be the exception rather than the norm; it is only provided where the information or co-operation is of such value that it is clearly in the public interest not to hold a person accountable for criminal activity.

It must be remembered when assessing whether to offer immunity that attorneys general are responsible for the supervision of all criminal prosecutions in Canada.¹³ It follows, therefore, that only the Attorney General through Crown counsel, and not the investigating agency, is entitled to confer immunity from prosecution.¹⁴ As well, the decision to confer or withhold immunity should never be improperly influenced by factors such as race, colour, religion or political association. Nor may these decisions be influenced by partisan political considerations. Crown counsel must remain objective in deciding whether to grant immunity.

It is also essential that Crown counsel be satisfied that the information-provider has made full and candid disclosure of all information pertaining to the activity in question or likely to affect the credibility of the information-provider. Such disclosure may relate to criminal activity in Canada or abroad, over which the Attorney General of Canada lacks prosecutorial authority. The information-provider must be candid about such activity, but must be advised that the Attorney General of Canada cannot bind other prosecutorial authorities.

In determining whether immunity may be appropriate, Crown counsel should weigh all relevant circumstances, including the following:

35.5.1 The Seriousness of the Offence

Generally, immunity should be considered only when the information provided relates to the commission of a serious offence, or when the successful prosecution of a case is otherwise important in achieving effective enforcement of the law. As a rule, it should not be considered in relatively minor cases.

35.5.2 The Importance and Reliability of the Person's Testimony or Co-operation

Before offering immunity, Crown counsel should assess the truthfulness and candour of the information-provider. If the person is to testify, Crown counsel should be satisfied that a properly instructed jury would likely view the witness as credible.¹⁵

However, truthfulness should not be equated with moral character, as Toy, J. pointedly observed in Re Meier¹⁶:

The state when it moves in to prosecute those who have allegedly committed crimes does not have the luxury of picking and choosing their witnesses. The state may have to rely on drunks, prostitutes, criminals, perjurers, paid informers as well as solid citizens to prove their case.

The same point was made by Barrette-Joncas, J., in R. v. Dubois¹⁷:

In criminal matters, and particularly in cases of murder, it is not always possible to have a bishop (priest) for a witness as the Crown did in the case of R. v. Vaudry, 500-9-8144-773, also before this court. (translation)

The information-provider must be candid about his or her involvement in criminal activity.¹⁸ Crown counsel's obligation, in this regard, is to ask the person whether he or she has been: a) convicted of any criminal offence; b) charged with any criminal offence; and, c) knowingly the object of a criminal investigation. Crown counsel must ensure that the person's full criminal record be placed before the court.¹⁹

Where assistance other than testimony is being offered, counsel should ensure that the investigating agency has attempted to confirm the reliability of the information provided. The most knowledgeable investigators on the case should review with all the facts and circumstances of the case that are known to the Crown. This usually involves a thorough examination of all documents, exhibits, seizures, surveillance reports and wiretap interceptions, as well as the statements of the other witnesses. The object is to determine the extent to which, if at all, the proposed evidence is inconsistent with the balance of the case for the Crown. Particular attention should be paid to intercepted communications to which the potential witness was a party, things that were seized from him or her or from a place under his or her control, and any police surveillance that focused on his or her activities.

Crown counsel should also assess the strength of the case for the prosecution with and without the information provider's testimony or other evidence, and should be satisfied that the person is able and prepared to provide reliable evidence on significant aspects of the case. Counsel should also consider whether the same evidence can be obtained from another source not requiring an assurance of immunity. The fact that the information-provider's testimony will corroborate otherwise uncorroborated evidence from other witnesses may satisfy this requirement.

Counsel should be cautious in providing immunity to persons with a history of serious criminal activity. While it may be sometimes appropriate to provide immunity to such persons in order to successfully prosecute other serious offenders, counsel must be aware the person’s testimony will be viewed with caution by the trier of fact; in some circumstances, reliance on such a witness may be damaging to the Crown’s case.

35.5.3 The Nature and Extent of the Person’s Involvement in the Offence

It is important for Crown counsel to compare the degree of the information-provider’s culpability with that of others being prosecuted. In the absence of unusual circumstances, it is generally not in the public interest to rely on the testimony of a high-ranking member of a criminal organization to convict a minor figure in the organization.

A co-operating accomplice is not, by reason only of involvement in the crime, incompetent to testify at the trial of former confederates.²⁰ Nor does the fact that the accomplice has been indicted separately on the offence, or on some other offence, render the accomplice non-compellable at the instance of the Crown²¹. The accomplice's evidence is, however, viewed with great caution²². Crown counsel must be conscious of the danger that the accomplice's evidence may become tainted during the process of conversion from accomplice to Crown witness.²³

Legal considerations apart, the courts consistently have held that as a matter of policy it is highly desirable to dispose of all outstanding charges against a witness before requiring the witness to testify.²⁴

35.5.4 The Strength of the Case Against the Information-Provider

The public interest may not be served by providing immunity against prosecution to a person who has committed a particularly serious offence where counsel is reasonably satisfied that the case can be proved against the person. Lesser forms of “reward” such as a joint submission for a reduced sentence, should also be considered.²⁵ Where, however, the prospect of convicting the information-provider is more doubtful, immunity may be more justifiable.

35.5.5 The Person’s History of Co-operation

Counsel should consider whether the person has in the past co-operated with law enforcement officials, either as a witness or an informer, and whether that person has previously entered into other immunity arrangements. In particular, counsel should consider whether and to what extent the proposed witness has previously, on being arrested, sought immunity through offers of co-operation. The expectation of immunity should not be allowed to become a license to commit crime.

35.5.6 Protection of the Public

“Public protection” is a concept somewhat narrower than, but certainly related to, “the public interest”. The fundamental question is whether the protection of the public would be better served through prosecution (and possible imprisonment) of the proposed information-provider or by relying on that person as a witness in the prosecution of the accused. Items 35.5.1 and 35.5.3 above are central in balancing these factors.

35.5.7 Disclosure Prior to Detection

In cases that are covert or difficult to detect, full and candid disclosure of conduct before its detection is an important consideration in favour of granting immunity. For example, competition offences such as price-fixing may continue unabated for some time unless one of the parties to the price-fixing scheme comes forward voluntarily. The grant of immunity should reflect the significant benefit to the legislative goals in such circumstances.

35.6 The Conduct of Negotiations

35.6.1 General Principles

The dangers associated with reliance upon immunity-seekers are well known. The person may be attempting to purchase lenient treatment by falsely accusing others. Being familiar with the circumstances surrounding the offence, the witness is in a position to attribute certain acts to innocent persons. The witness may also minimize his or her own role in the transaction and transfer the primary blame to others.

35.6.2 Contact with the Information-Provider

In this respect, where the information-provider is represented by legal counsel, the negotiations for immunity should be conducted by Crown counsel through the person’s lawyer. Where the person is unrepresented, Crown counsel should recommend that he or she obtain legal assistance during the negotiations. Finally, whenever possible, Crown counsel should limit their meetings with the person and deal primarily with the other lawyer until the Agreement is finalized and ready for signature. As well, Crown counsel should maintain detailed records of all negotiations leading up to the Agreement. Finally, counsel should review the policy on “Plea and Sentencing Discussions and Issue Resolution”²⁶.

35.6.2.1 Consultation Required Before Concluding Agreement

Granting immunity can be (and usually is) a complex process involving several offices with differing mandates. Consequently, consultation on at least four levels may and often will be required.

In most cases, the immunity process begins with discussions between the information-provider and the case investigators without prior consultation with Crown counsel. These discussions are usually followed by an approach by the investigators to the prosecutor. The input from the investigating agency is extensively relied on by Crown counsel in assessing the relevant public interest criteria. Crown counsel should be satisfied that the proposed agreement has been reviewed and approved by the senior official of the agency responsible for review of such agreements. The decision to provide immunity should, wherever possible, be agreed on by Crown counsel and the investigating agency, although Crown counsel bears the ultimate responsibility for deciding who is prosecuted and who is called as a witness.

Second, counsel should consult with other Regional Offices where the offence being prosecuted, or the offence for which immunity is being offered, relates to conduct committed in part in other provinces or territories. An immunity agreement concluded by one Regional Office binds the Attorney General of Canada across Canada with respect to offences for which the Attorney General acts as prosecutor.

Third, provincial authorities may have jurisdiction to prosecute offences committed by the person, and in most instances the Attorney General of a province will be the only authority capable of controlling private prosecutions brought against the person.²⁷ Therefore, it will sometimes be desirable to discuss the proposed immunity agreement with provincial authorities. Whether and to what extent Crown counsel should become involved in these discussions, or whether Crown counsel should leave them entirely to counsel for the person, should be decided on a case-by-case basis.

Finally, Crown counsel²⁸ should always consult with the FPS Director and, when possible, the Senior Regional Director, before entering into an immunity agreement. In cases of significant public interest, the Senior Regional Director should consult the Assistant Deputy Attorney General (Criminal Law) before finalizing an arrangement. As well, before taking recourse in other proceedings against a person who has breached the immunity agreement, Senior Regional Directors must consult the Assistant Deputy Attorney General (Criminal Law).

35.6.3 Ensuring the Integrity of the Negotiations

Because of the credibility of a person who has signed an immunity agreement is always a significant issue at trial, Crown counsel should canvass the areas usually explored in cross-examination before deciding whether to conclude the agreement.

35.6.3.1 The Process under which the Witness was “Converted”

Crown counsel should be fully aware of the circumstances, such as who approached whom, the numbers of interviews and the parties attending, whether the interviews were recorded, etc.

35.6.3.2 The Understanding with the Crown

Crown counsel should explore the terms of the agreement and the person's understanding of it, including such things as

• dropping charges;
• reducing charges;
• dropping or reducing the charges of others, such as family members or friends;
• the point at which such charges were to be dealt with;
• outstanding charges;
• relocation;
• circumstances prompting relocation;
• provision of a new identity;
• payment of money: lump sum, monthly allowance, relocation expenses;
• securing employment;
• the resolution of pending applications for the return of offence-related property or proceeds of crime under the provisions of the Controlled Drugs or Substances Act or Part XII.2 of the Criminal Code;
• reward money;
• giving “consent” to tender the private communications of the witness into evidence pursuant to paragraph 189(1)(b) of the Criminal Code;
• whether the witness received a pardon in exchange for co-operation;
• the circumstances under which the agreement could be terminated; and,
• special privileges while in jail or under the control of the police pursuant to subsection 527(7) of the Criminal Code.

35.6.3.3 The Extent to Which the Information-provider was Exposed to the Balance of the Crown’s Case

Crown counsel should explore whether it was possible that during the debriefing process the information-provider consciously or unconsciously absorbed facts previously unknown to him or her, and had that been obtained by investigators from other sources. This danger may arise, for example, where the person was given something by the investigating agency designed to “prompt” memory on certain matters, including investigative aids such as flow charts.²⁹ This may also include items received by way of Crown disclosure when the person was charged. This is not to suggest it is never proper to show the person business records, for example, but simply to emphasize that care must be taken.

35.7 The “Jailhouse” or “In-custody” Informer

Together with all of the other considerations set out in this chapter, it is important to examine additional factors when the information-provider in question can be categorized as a “jailhouse” or “in-custody” informer. In this respect, notice should be taken of the definition of an “in custody informer”, as set out by the Honourable Fred Kaufman, C.M., Q.C. in his report on the Guy Paul Morin case³⁰:

The use of in-custody informers has been identified as a significant contributing factor in cases of wrongful conviction³¹. There are four issues to which Crown counsel should pay particular attention when dealing with an in-custody informer.

35.7.1 Credibility

At pp. 486-487 of the Kaufman Report, it is stated that:

The Report suggests that at a minimum the Crown should conduct a subjective assessment of the informer’s proposed testimony. Counsel should examine: “the details of the evidence; the motives for lying; and the possibility of collusion, where there is more than one in-custody informer.”³³

In order to assess credibility, Crown counsel should consider the following factors:

• The background of the informer, which could include an examination of his or her physical and mental profiles. Also relevant is whether or not the informant has claimed receiving in-custody statements in the past; whether or not his or her information has been reliable in the past; whether the informer has testified in the past; whether the informer has been convicted of offences including dishonesty;
• The circumstances of the informer’s incarceration, including access to information about the crime in question;
• The circumstances surrounding the giving of the accused’s alleged “confession” (when, where and how it was made);
• The circumstances surrounding the disclosure of the alleged statement to the Crown;
• The benefits sought or received;
• The use of tests to ensure reliability, e.g., polygraph examinations;
• The extent to which the statement is corroborated by other evidence. Where there is more than one in-custody informer, such corroboration should be independent of the other informer’s statement;
• The specificity of the statement; does it contain details or leads known only to the culprit?

35.7.2 The Relationship between the Informer and the Police

Very often in cases involving in-custody informers, the defence alleges that the Crown has taken questionable steps to elicit the testimony of the in-custody informer in order to bolster its own case. In order to assess the circumstances which gave rise to the informer’s participation, Crown counsel should seek answers to the following questions:

• Was the evidence solicited by the police?
• Was there a prior association between the in-custody informer and the police officer involved with the investigation?
• Did the police approach the informer prior to his “receiving” the “confession”?
• What were the circumstances surrounding the placement of the informer within the prison facility?
• Did the police provide information to the informer prior to the making of the statement; did they ask leading questions, etc.?

35.7.3 The Approval Process for the Use of the In-Custody Informer

Where Crown counsel have addressed the factors set out above, and have satisfied themselves that the informer evidence is credible, they should recommend to the FPS Director that the informer be called as a witness.³⁴ If the FPS Director believes it is an appropriate case for use of the informer, the Director should seek the advice of the National Prosecution Advisory Committee³⁵ before making a final decision. Should the Committee and the Director disagree, the matter should be directed to the ADAG (Criminal Law) for a final decision.

35.7.4 Informer Benefits

It is preferable that negotiation of such benefits should not be conducted by Crown counsel who are prosecuting the accused. The benefits should never be conditional on whether the Crown obtains a conviction of the accused. ³⁶

35.8 Breach of Agreements

It may become necessary to seek a remedy against a person previously granted immunity where that person:

• withdraws promised co-operation with the Crown;
• fails to be truthful when testifying;³⁷
• has wilfully or recklessly misled the investigating agency or Crown counsel about material facts concerning the case including factors relevant to that person's reliability and credibility as a witness; or
• has sought immunity by conduct amounting to a fraud or an obstruction of justice.

Whether the person should be indicted if this occurs, either for the offence for which he or she sought immunity or for some other offence, will depend on the circumstances of each case. However, the terms of the agreement with the person and the manner in which it was breached will be important considerations.³⁸ In some circumstances, the laying of charges against the witness (or the recommencement of proceedings under subsection 579(2) of the Criminal Code) may amount to an abuse of the court's process³⁹.

35.9 Filing of the Agreement in Court

In all cases in which a Crown witness testifies as part of an immunity agreement, Crown counsel will provide the agreement to the defence as part of pre-trial disclosure, and seek to file the agreement with the Court as an exhibit when the person testifies.

35.10 Appendix “A” – Agreement Checklist

CONTENTS OF IMMUNITY AGREEMENTS: A CHECKLIST

An immunity agreement should be in writing, be signed by and given to the witness before testifying, and should include, among other things, the following information:

1. the names of all parties to the agreement to obtain immunity;
2. the name of any other person intended to benefit from the agreement;
3. the acts or omissions in respect of which the immunity is provided;
4. the scope of the agreement, e.g., that it does not extend to prosecutions that may be commenced by provincial authorities, or to crimes undisclosed by the witness;
5. the form the immunity will take (e.g., staying existing charges, undertaking not to proceed on potential charges);
6. the evidence, information, co-operation, assistance or other benefit to be exchanged for the immunity;
7. any additional commitments made by the parties, including the specifics of any expenditures to be made by the Crown;
8. a general description of what will amount to a breach of the agreement, and the consequences of such a breach; and
9. a stipulation that evidence provided under an agreement must be truthful.

35.11 Appendix “B” – Immunity Agreement

SAMPLE IMMUNITY AGREEMENT

NOTE: The contents of an immunity agreement will vary according to the facts of each case. The following is a sample only; when drafting agreements, counsel should review the issues described in Appendix “A” to ensure completeness. The document should be drafted in a legal format, and not in the form of a letter to the witness.

John Doe agrees to:

[set out all details of proposed co-operation]

The Attorney General of Canada agrees to:

It is understood by John Doe and counsel for the Attorney General of Canada that:

1. Full and frank disclosure regarding [state in general terms] by John Doe forms an essential term of this agreement;
2. The failure to provide truthful evidence at the trial of the accused results in the termination of this agreement, and may lead to the prosecution of John Doe for perjury, the giving of contradictory evidence, obstructing justice, public mischief, or some related offence. It may also result in charges against John Doe for other offences described above;
3. Reasonable and necessary out-of-pocket expenses and security arrangements necessary while John Doe is testifying under this agreement will be borne by the Crown;
4. Immunity from prosecution under this agreement is confined to the offence described above. It does not extend to offences not disclosed in writing by John Doe to [name of Crown counsel] before entering into this agreement. Nor does it extend to offences that John Doe may commit after this agreement is signed, or to any offence that may be prosecuted by the Attorney General of a province.

The understanding described in this memorandum is the complete agreement between the Attorney General of Canada and John Doe.

Dated at the City of _______, in the Province/Territory of ___________, the___ day of___ , 200_.

_________________________
John Doe Counsel for the Attorney General of Canada

_____________________
Counsel for John Doe

I received a copy of this agreement on the___ day of___ , 200_.

_________________________
John Doe

35.12 Appendix “C” – Investigative Assistant Agreement

INVESTIGATIVE ASSISTANCE AGREEMENT

1. PARTIES TO THE AGREEMENT

THIS AGREEMENT is between

1. the Crown in Right of Canada, as represented by counsel for the Attorney General of Canada, and by the investigating agency, namely the _____________________________;
   - and -
   
   ______________________________;
   (information-provider)

2. RECITALS

WHEREAS the _________________________________________ (hereinafter, the investigating agency) have been and are continuing to investigate the following persons or activities, namely _______________________________ (hereinafter, the investigation) and whereas counsel for ______________________ has advised the investigating agency that (name) is willing to give the investigating agency any and all information in his/her possession concerning the subject-matter of the investigation in return for assurances that this information will not be used against him/her except in the circumstances detailed in writing below or as may be later amended by mutual agreement; and

WHEREAS the investigating agency, having consulted with counsel for the Attorney General of Canada, wishes to receive this information and, together with the Attorney General of Canada, are prepared to give the aforementioned assurances on behalf of the Crown in Right of Canada, in return.

3. OBLIGATIONS

THEREFORE (name) and the Crown in Right of Canada hereby agree as follows:

3.1 (name) agrees to:

3.1.1 attend on the investigating agency at a place of mutual convenience for the purposes of giving them all information (including documents) in his/her knowledge, possession, or control with respect to the acts, statements, and communications of himself/herself and others in all matters about which that investigating agency may inquire;

3.1.2 be sworn or affirmed in any manner that may be binding under Canadian law, to receive and acknowledge all cautions or warnings that may have to be administered under that law, and to answer all questions that may be posed during the course of one or more interviews that will be videotaped and/or audiotaped;

3.1.3 disclose all information and to produce the original (or a true copy) of any document that is in his/her knowledge, possession or control concerning all matters about which the investigating agency shall inquire, in as true complete, and unequivocal a manner as it is known or available to him/her;

3.1.4 keep confidential and not disclose, except to his or her counsel or a court of law, all questions asked and all answers given during the course of the aforementioned interviews, including any information pertaining to the state of the investigation or the nature and extent of police knowledge, opinions, and theories about the subjects of the investigation and their activities;

3.1.5 testify fully and truthfully in any proceeding to which he or she is subpoenaed as to all matters within his or her knowledge that arise out of the subject-matter of this Investigation; and

3.1.6 notify _____________________ of the ____________________ (or any other investigator who may be specified from time to time), in writing within forty-eight (48) hours of the signing by (name) of this Agreement, of his or her current residence, postal address, and telephone number, and to advise that police officer in writing and within a similar time period, of any changes in same, as they may occur.

3.2 THE CROWN IN RIGHT OF CANADA agrees that:

3.2.1 no statements made by (name) during the one or more interviews held by virtue of this Agreement, will be used in evidence against (name) in any criminal proceedings prosecuted by or on behalf of the Attorney General of Canada, in which (name) is charged as an Accused person except in the case of:

1. (name) subsequently giving, in any trial, hearing, or proceeding (including any in which he/she is an accused), evidence that is materially different from that given by him/her under this Agreement, or
2. (name) being charged, as a result of anything said or done by him/her during the course of the aforementioned interviews, with one or more offences of committing perjury, giving contradictory evidence, fabricating evidence, obstructing a peace officer, obstructing justice, or committing public mischief by false statement.

3.2.2 no original or copy of a document provided by (name) during the course of the one or more interviews held by virtue of this Agreement, or given later to the investigating agency as a direct result of any request made by them at such interview(s), will be used in evidence against (name) in any criminal proceedings prosecuted by or on behalf of the Attorney General of Canada, in which (name) is charged as an Accused person, except in the case of the events set out in sub-paragraphs 3.2.1 (a) or (b) above, occurring. This applies as well to any copy made by the Crown in Right of Canada of any document furnished by (name).

4. LIMITATIONS

4.1 Nothing in this Agreement affects the right of the Crown in Right of Canada to make use of any information or document provided by (name) under this Agreement in order to discover or acquire derivative information or documents from a source other than (name).

4.2 Nothing in this Agreement affects any use that the Crown in Right of Canada may make of any information or document obtained from a source other than (name), notwithstanding:

1. that the form or content of that information or document may be similar or identical to that of any information or document provided by (name) under this Agreement, or
2. that any information or document provided by (name) under this Agreement led directly or indirectly to the discovery or acquisition of the information or document obtained from the other source.

4.3 Nothing in this Agreement affects the right of the Crown in Right of Canada to determine, what, if any, criminal charges may be laid and prosecuted against any person, including (name), in relation to this investigation.

5. BREACH

5.1 It is fundamental to this Agreement that (name) disclose to the investigating agency fully, straightforwardly, and truthfully, all the information and documents that the Witness knows, possesses, or controls in relation to the subject-matter of the investigation; do so in the form and manner required by this Agreement; maintain all confidentialities imposed thereunder; and testify fully and truthfully when so obliged in relation to the subject-matter of the Investigation. A failure or refusal to do any of these things, or a failure or refusal to do them to the extent or in the manner required by this Agreement, will constitute a breach of the said Agreement.

5.2 It is also fundamental to this Agreement that (name) comply in a timely and accurate fashion with the obligations set out in paragraph 3.1.6 of the section OBLIGATIONS as well as those contained in any provisions of this Agreement governing pleas of guilty, positions to be taken on sentence, compliance with sentences imposed including payment of fines in full within such times as may be allowed or extended by the Courts, and the execution of any consent or authorizations as may be requested of (name) in order to permit access by the investigating agency to evidence, interviews, testimony, statements, or documents given to any other person or body in Canada or elsewhere. A failure or refusal to do any of these things, or a failure or refusal to do them to the extent or in the manner required by this Agreement, will, at the option of the Crown in Right of Canada, constitute a breach of the said Agreement.

6. ACKNOWLEDGEMENT BY (NAME)

I acknowledge that I have received a copy of this Agreement from my counsel, have read it, where necessary I have had it explained to me in whole or in part, and I understand it. I further acknowledge that it fully sets forth the terms of my agreement with the Crown in Right of Canada in respect of my providing information and/or documents to the investigating agency in respect to the subject Investigation. There have been no promises or representations made to me that are not disclosed herein. I have been fully advised of my rights by counsel of my own choice. I am aware of the legal consequences under Canadian law for those who would knowingly provide false, misleading, or incomplete information under these circumstances. Finally, I acknowledge that I fully understand my rights under Canadian law and I am entering into this Agreement voluntarily.

DATED at the City of __________, in the Province / Territory of _______________, this _____ day of ___________, 20 ___.

__________________ for the Attorney General of Canada	__________________ (name)
__________________ for the Investigating Agency	__________________ Counsel for (name)

35.13 Appendix “D” – Competition Act – Provisional Guarantee of Immunity – Individual

MODEL LETTER – INDIVIDUAL

PROVISIONAL GUARANTEE OF IMMUNITY

Addressee

Dear [Insert]:

Subject : Provisional Guarantee of Immunity - Individual X

I am writing further to Individual X’s application for immunity from prosecution under the Competition Act pursuant to the Competition Bureau’s Immunity Program, as set out in the Information Bulletin: “Immunity Program under the Competition Act”.

The Commissioner of Competition has provided to the Attorney General of Canada the information disclosed on behalf of Individual X and recommended that Individual X be given a Provisional Guarantee of Immunity from prosecution under the Act.

The basis for the Commissioner’s recommendation is that:

• Individual X has disclosed [Insert description of alleged offence including, nature of illegal behaviour and provision(s) of Competition Act violated, product and geographic market, time period of offence, parties involved];
• the Bureau was unaware of this/these offence(s), and Individual X was the first to disclose it OR
• the Bureau is aware of the offence(s), and Individual X was the first to come forward before there was sufficient evidence to warrant a referral of the matter to the Attorney General;
• Individual X has represented that he/she has taken effective steps to terminate his/her participation in the illegal activity;
• Individual X has represented that he/she was not the instigator or the leader of the illegal activity, nor the sole beneficiary of the activity in Canada;
• Individual X has undertaken to provide complete, truthful and timely co-operation pursuant to paragraph 16 of the Bureau’s Information Bulletin on immunity.

The Attorney General has taken into consideration the recommendation of the Commissioner, the information and representations on behalf of Individual X, and the principles set out in the Federal Prosecution Service Deskbook.

This is to advise you that, based on the representations made thus far, and, in order to facilitate further disclosure and investigation, Individual X is granted a provisional guarantee of immunity from prosecution under the Competition Act in respect of [Insert disclosed conduct and offence] prior to [Insert date of application for immunity].

This Provisional Guarantee of Immunity is conditional upon Individual X providing information and evidence to the Competition Bureau and the Attorney General and discharging all the obligations described in Part C, attached, of the Bureau’s Information Bulletin on immunity.

Unless made public by the Attorney General or the Commissioner of Competition, or as may be ordered by a Court of competent jurisdiction, Individual X shall not disclose the existence of this Provisional Guarantee of Immunity, nor the substance of the matter under investigation, without the consent of the Attorney General. That consent will not be unreasonably withheld.

Yours truly,

for the Attorney General of Canada

35.14 Appendix “E” – Competition Act – Provisional Guarantee of Immunity – Company

MODEL LETTER - COMPANY

PROVISIONAL GUARANTEE OF IMMUNITY

Addressee

Dear [Insert]:

Subject : Provisional Guarantee of Immunity - Company X

I am writing further to Company X’s application for immunity from prosecution under the Competition Act pursuant to the Competition Bureau’s Immunity Program, as set out in the Information Bulletin: “Immunity Program under the Competition Act”.

The Commissioner of Competition has provided to the Attorney General of Canada the information disclosed on behalf of Company X and recommended that Company X and its directors, officers, and employees [insert, if appropriate, names of those excluded, and /or names of past directors, officers, and employees included] be given a Provisional Guarantee of Immunity from prosecution under the Act.

The basis for the Commissioner’s recommendation is that:

• Company X has disclosed [Insert description of alleged offence including, nature of illegal behaviour and provision(s) of Competition Act violated, product and geographic market, time period of offence, parties involved];
• The Bureau was unaware of this/these offence(s), and Company X is the first to disclose it

OR

• the Bureau is aware of the offence(s), and Company X was the first to come forward before there was sufficient evidence to warrant a referral of the matter to the Attorney General;
• Company X has represented that it has taken effective steps to terminate its participation in the illegal activity;
• Company X has represented that it was not the instigator or the leader of the illegal activity, nor the sole beneficiary of the activity in Canada;
• Company X has undertaken to provide complete, truthful and timely co-operation pursuant to paragraph 16 of the Bureau’s Information Bulletin on immunity.

The Attorney General has taken into consideration the recommendation of the Commissioner, the information and representations on behalf of Company X, and the principles set out in the Federal Prosecution Service Deskbook.

This is to advise you that, based on its representations to date, and, in order to facilitate further disclosure and investigation, Company X and its directors, officers and employees [insert, if appropriate, names of those excluded, and /or names of past directors, officers and employees included] are granted a provisional guarantee of immunity from prosecution under the Competition Act in respect of [Insert disclosed conduct and offence] prior to [Insert date of application for immunity].

This Provisional Guarantee of Immunity is conditional upon Company X providing information and evidence to the Competition Bureau and the Attorney General and discharging all the obligations described in Part C, attached, of the Bureau’s Information Bulletin on immunity.

Unless made public by the Attorney General or the Commissioner of Competition, or as may be ordered by a Court of competent jurisdiction, Company X shall not disclose the existence of this Provisional Guarantee of Immunity, nor the substance of the matter under investigation, without the consent of the Attorney General, which consent will not be unreasonably withheld.

Yours truly,

for the Attorney General of Canada

35.15 Appendix “F” – Competition Act – Immunity Agreement – Individual

Re: Product ‘A’ Inquiry : Individual X

1. Introduction: This Agreement between the Attorney General of Canada and Individual X, is made pursuant to an application for immunity from prosecution under the Competition Act in the on-going Inquiry under the Competition Act into the production, marketing, distribution and sale of Product(s) A, pursuant to the Immunity Program of the Commissioner of Competition, and it sets out the terms and conditions applicable to a grant of immunity from prosecution under the Act by the Attorney General to Individual X..

2. Considerations: The Commissioner and the Attorney General have received information and evidence from Individual X pursuant to his/her application for immunity, and the Attorney General has granted to Individual X a Provisional Guarantee of Immunity. Based on the information and evidence obtained in the course of the Commissioner’s inquiry, the Attorney General is satisfied that one or more offence(s) under the Competition Act has been committed. Individual X has fulfilled the requirements for immunity under paragraph 13 [stipulate (a) or (b)], Part C of the Information Bulletin: “Immunity Program under the Competition Act” and has provided information and evidence that he/she has taken effective steps to terminate his/her participation in the illegal activity and was not the instigator or the leader of the illegal activity, nor the sole beneficiary of the activity in Canada.

3. Agreement: Individual X has agreed that he/she will, as a continuing obligation:

1. make a full disclosure of evidence to the Commissioner, including the provision of all non-privileged, relevant information and documents evidence known to him/her, in his/her possession or under his/her control, wherever located;
2. remain made available for interviews by officers of the Competition Bureau, on request, and
3. continue to provide his/her full and truthful cooperation and assistance to the Commissioner in the ongoing Inquiry.

Pursuant to the Immunity Program, the Commissioner has recommended that the Attorney General grant immunity from prosecution under the Competition Act to Individual X, in respect of all conduct disclosed prior to the date of this agreement that may constitute an offence under that Act. After an independent review of the information and evidence produced by the inquiry, pursuant to the policy of the Attorney General as set out in the Federal Prosecution Service Deskbook, the Attorney General accepts the recommendation by the Commissioner and, therefore, agrees to, and does hereby, grant immunity from prosecution under the Competition Act to Individual X in respect of [name offence(s)] in the production, marketing, distribution and sale of [insert specific product(s)] that occurred prior to the date of this agreement, as disclosed to the Commissioner by Individual X.

4. Failure to Comply with the Immunity Agreement: If the Attorney General determines that Individual X, granted immunity here, has failed to fulfill the continuing conditions set out in Part C of the Immunity Program under the Competition Act, the Attorney General, on seven (7) days prior written notice to Individual X and to counsel for Individual X of the intention to do so, may revoke the immunity granted to Individual X and may, therefore, take such action against Individual X, including prosecution under the Competition Act or otherwise, as the Attorney General she considers appropriate.

Nothing in this agreement shall prevent the use of information or evidence provided by Individual X or a cooperating individual to impeach the credibility of an individual whose subsequent testimony in a legal proceeding in Canada is materially different from, or who may recant, the information or evidence provided by that individual. This agreement does not provide immunity from prosecution for perjury, the giving of contradictory evidence or obstruction of justice, if the circumstances warrant such action, or for conduct other than that disclosed to the Commissioner.

5. Confidentiality: Pursuant to the Commissioner’s Immunity Program, representatives of the Commissioner or the Attorney General shall treat as confidential the identity of Individual X and any information obtained from him/her, except as required by law.

Unless made public by the Attorney General or the Commissioner, or as may be ordered by a Court of competent jurisdiction, Individual X shall not disclose the existence, or the substance of the matter under investigation, to any person, without the consent of the Attorney General, which consent will not be unreasonably withheld.

6. Entire Agreement: The agreement set out here constitutes the entire agreement between the Attorney General and Individual X, and supercedes any prior agreements or understandings, either oral or written, relating to the subject matter herein.

7. Authority and Capacity: The signature of the party below signifies the full and voluntary acceptance by Individual X of this agreement and the conditions set out here.

Dated at _________________this ________day of ___________,20__.

__________________________
for the Attorney General of Canada

__________________________
Witness

I confirm that I have read and understand this immunity agreement and have had an opportunity to consult Canadian counsel on its terms, that I accept this agreement and the conditions set out here, and that I voluntarily do so.

Dated at _________________this ________day of ___________,20__.

__________________________
Individual X

__________________________
Witness

35.16 Appendix “G” – Competition Act – Immunity Agreement – Company

Re: Product ‘A’ Inquiry: Company X

1. Introduction: This Agreement between the Attorney General of Canada and Company X, is made pursuant to an application for immunity from prosecution under the Competition Act in the on-going Inquiry under the Competition Act into the production, marketing, distribution and sale of Product(s) A, pursuant to the Immunity Program of the Commissioner of Competition, and it sets out the terms and conditions applicable to a grant to Company X of immunity from prosecution under the Act by the Attorney General.

2. Considerations: The Commissioner and the Attorney General have received information and evidence from Company X pursuant to its application for immunity, and the Attorney General has granted to Company X a Provisional Guarantee of Immunity. Based on the information and evidence obtained in the course of the Commissioner’s inquiry, the Attorney General is satisfied that one or more offence(s) under the Competition Act has been committed. Company X has fulfilled the requirements for immunity under paragraph 13 [stipulate (a) or (b)], Part C of the Information Bulletin: “Immunity Program under the Competition Act ” and has provided information and evidence that it has taken effective steps to terminate its participation in the illegal activity and was not the instigator or the leader of the illegal activity, nor the sole beneficiary of the activity in Canada.

3. Agreement: Company X has agreed that it will, as a continuing obligation:

1. make a full disclosure of evidence to the Commissioner, including providing all non-privileged, relevant information and documents and evidence known to it, in its possession or under its control, wherever located;
2. use all lawful means to make made available Company X employees for interviews by officers of the Competition Bureau, on request, and
3. undertake to continue to provide its full and truthful cooperation and assistance to the Commissioner in the ongoing Inquiry [where appropriate for non-cooperating individuals except with respect to Individual Y to whom this letter has no application].

Pursuant to the Immunity Program, the Commissioner has recommended that the Attorney General grant immunity from prosecution under the Competition Act to Company X, in respect of all conduct disclosed prior to the date of this agreement that may constitute an offence under that Act. After an independent review of the information and evidence produced by the inquiry, pursuant to the policy of the Attorney General as set out in the Federal Prosecution Service Deskbook, the Attorney General accepts the recommendation by the Commissioner and, therefore, agrees to, and does hereby, grant immunity from prosecution under the Competition Act to:

1. Company X [and its affiliates, if relevant], and
2. their present directors, officers and employees [other than Individual Y, if relevant] [and to past directors, officers, and employees, if relevant]

in respect of [name offence(s)] in the production, marketing, distribution and sale of [insert specific product(s)with respect to any conduct encompassed by the Inquiry] that occurred prior to the date of this agreement, as disclosed to the Commissioner by Company X. For further clarity, this letter has no application to any offences or other liabilities arising out of customs or taxation statutes or under the Criminal Code.

4. Failure to Comply with the Immunity Agreement: If the Attorney General determines that Company X [or any company or individual] granted immunity herein has failed to fulfill the continuing conditions set out in Part C of the Immunity Program under the Competition Act, the Attorney General, on seven (7) days prior written notice to that person and to counsel for Company X of the intention to do so, may revoke the immunity granted to the person concerned and may, therefore, take such action against that person, including prosecution under the Competition Act or otherwise, as the Attorney General considers appropriate.

Nothing in this agreement shall prevent the use of information or evidence provided by Company X or a cooperating individual to impeach the credibility of an individual whose subsequent testimony in a legal proceeding in Canada is materially different from, or who may recant, the information or evidence provided by that individual. This agreement does not provide immunity from prosecution for perjury, the giving of contradictory evidence or obstruction of justice if the circumstances warrant such action, or for conduct other than that disclosed to the Commissioner.

5. Confidentiality: Pursuant to the Commissioner’s Immunity Program, representatives of the Commissioner or the Attorney General shall treat as confidential the identity of Company X and any information obtained from it, except as required by law.

Unless made public by the Attorney General or the Commissioner, or as may be ordered by a Court of competent jurisdiction, Company X shall not disclose the existence, or the substance of the matter under investigation, to any person, without the consent of the Attorney General, which consent will not be unreasonably withheld.

6. Entire Agreement: The agreement set out here constitutes the entire agreement between the Attorney General and Company X, and supercedes any prior agreements or understandings, either oral or written, relating to this subject matter.

7. Authority and Capacity: The signature of the party below, so authorized and representing Company X, signifies the full and voluntary acceptance of this agreement and the conditions set out herein by Company X.

Dated at _________________this ________day of ___________,20__.

__________________________
for the Attorney General of Canada

__________________________
Witness

I confirm that I have read and understand this immunity agreement and have had an opportunity to consult Canadian counsel on its terms, that I have the authority on behalf of Company X (as indicated in the corporate resolution attached) to accept this agreement and the conditions set out herein, and that I voluntarily do so.

Dated at _________________this ________day of ___________,20__.

__________________________
President, Company X

__________________________
Witness

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Date Modified:

2008-12-24