Typically, the Bureau will discuss the situation with the Applicant and provide an opportunity to the Applicant to address any shortfalls in its conduct as quickly as possible before making a recommendation for revocation to the PPSC. Where the PPSC determines that the Applicant has failed to fulfil the terms and conditions set out in its immunity agreement, the PPSC will provide a minimum of 14 calendar days notice to the Applicant so that it has an opportunity to remedy its failure before revoking the immunity agreement.
Footnote 5. Revocation of immunity will affect only the individual or organization that is not cooperating or that otherwise fails to comply with the immunity agreement. Applicants are required to stop participating in the illegal activity to qualify for immunity.
Organizations should conduct an internal investigation of the illegal activity and secure the cooperation of potential witnesses in a manner that is consistent with confidentiality obligations under the Immunity Program. Paragraph 15 of the Immunity Bulletin states that to qualify for immunity the party must not have coerced others to be party to the illegal activity. The Bureau will disqualify a party only where there is clear evidence of coercive behaviour.
In particular, where there is evidence that the party pressured unwilling participants to be involved in the offence, the party will not qualify for immunity. The coercion may be either express or implied. Paragraph 16 of the Immunity Bulletin provides that where the party requesting immunity is the only party involved in the offence, it will not be eligible for immunity. Certain offences under the Act may be carried out by only one organization.
For example, the offence of false or misleading representations may be committed by one organization and be intended for the sole benefit of t hat organization. These offenders are ineligible for immunity in light of paragraph 16 of the Immunity Bulletin. While an organization acting alone may not be eligible for immunity as a result of this provision, its directors, officers or employees are encouraged to apply for individual immunity.
A grant of immunity to a sole participant in an offence is of no benefit to the Bureau, as there is no other party to investigate. Individuals employed by an organization ineligible as a result of paragraph 16 may be separately eligible under the Immunity Program, as their admissions and evidence may further an investigation of the organization.
They are encouraged to apply for immunity through separate counsel. In particular, paragraph 17 b requires that the Applicant must reveal to the Bureau and the PPSC any and all conduct of which it is aware, or becomes aware, that may constitute an offence under the Act in which it may have been involved.
A number of questions have been raised regarding what an Applicant is required to disclose pursuant to this provision. The Bureau requires Applicants to disclose all criminal offences under the Act of which they are aware and that relate to any product or business interest.
Applicants will be expected to exercise reasonable due diligence in determining whether they have been involved in other criminal offences under the Act. Disclosure of the offences should be made as soon as possible after an immunity application and will be required before the Bureau recommends that the DPP sign an immunity agreement with the Applicant. Offences uncovered after the signing of the agreement must be brought to the attention of the Bureau and the PPSC at the earliest possible time.
For a description of the Immunity Plus Program, see the response to question 43 below. The Bureau may recommend increased penalties for criminal offences under the Act that the Applicant should have discovered through its due diligence efforts and disclosed.
Revocation of immunity may be justified where the Applicant knew of and failed to disclose those other offences. The Bureau will also recommend increased penalties in these circumstances to address the multiple offences as an aggravating factor in sentencing. Applicants should also anticipate that witnesses will be asked about any criminal activity, under any legislation, that can reasonably be expected to impact their credibility as a witness.
Before offering immunity, it is essential that counsel for the PPSC be satisfied that the Applicant has disclosed all the information likely to affect its credibility. Such disclosure may relate to criminal activity in Canada or abroad. Paragraph 17 of the Immunity Bulletin requires parties to provide full, complete, frank and truthful disclosure and prohibits misrepresentation of any material facts.
It could also face a criminal charge of obstruction under section 64 of the Act, or of destroying or altering records under section 65 of the Act. Providing false or misleading information under oath can lead to charges, including perjury or obstruction, under the Criminal Code. Applicants remain at risk of being prosecuted for any undisclosed criminal offences and will not be eligible for either the Immunity Program or the Immunity Plus Program described below in relation to that conduct.
Parties that are not first to disclose conduct to the Bureau may nevertheless qualify for immunity if they are first to disclose information relating to another offence. Immunity Plus may be available in situations such as the following: Organization ABC is not the first to disclose the pencils cartel to the Bureau and therefore does not qualify for immunity for pencils.
However, ABC does disclose information relating to a different offence unknown to the Bureau, one involving a different product, for example, a cartel with respect to erasers. ABC will be granted immunity for the cartel on erasers, subject to compliance with the requirements set out in the Immunity Program. Footnote 6. Immunity Plus encourages targets of ongoing investigations to consider whether they may qualify for immunity in other markets where they compete.
Immunity Plus is aimed at encouraging companies already under investigation to report the full extent of their illegal activities and put all competition law matters behind them. The size of the recommended Immunity Plus discount will depend on a number of factors relating to the conduct for which immunity is available.
These factors include the strength of the evidence provided by the Applicant and the estimated significance of the case it brought forward, measured in such terms as the affected volume of commerce in Canada; the geographic scope of the conduct in question; and the number of co-conspirator organizations and individuals involved in the conduct in question.
This discount will be applied only where all conditions of cooperation under the Immunity Program and Leniency Program are met by the Applicant. The Bureau treats the identity of an Applicant as confidential. Paragraph 31 of the Bulletin states that the only exceptions to this policy are where:.
The Bureau also treats as confidential information obtained from a party requesting immunity, subject only to the exceptions listed above, or where disclosure of such information is otherwise for the purpose of the administration or enforcement of the Act. Applicants should be aware, however, that their identity may be disclosed before charges are laid if the Bureau relies on their evidence in an application to a Canadian court for a search warrant, production order or judicial authorization of another investigative measure.
Recourse to search warrants and production orders, among other things, can be of utmost importance to an investigation. To obtain court authorizations, the Bureau must provide the court with information that there are reasonable grounds to believe that an offence has been, or will be, committed. The Bureau will rely on the information provided by the Applicant to establish these grounds. However, the Bureau will take all reasonable steps to ensure that this type of early disclosure does not occur, except where necessary.
If the identity of the Applicant cannot be kept confidential when the Bureau applies for such authorization, it will request that the ITO , or relevant portion thereof, be sealed until charges are laid. Where it appears likely that disclosure is unavoidable, the Bureau will advise the Applicant as soon as possible. The Bureau will not commence civil proceedings against an Applicant in relation to the same or substantially the same facts that formed the basis of its immunity application in relation to the criminal provisions of the Act.
In this context, the Bureau will treat the Applicant in the same manner as if it had pleaded guilty to the offence for which it received immunity. As set out in paragraph 33 of the Immunity Bulletin, the Bureau will not disclose the identity of an Applicant or the information obtained from that Applicant to any foreign law enforcement agency without the consent of the Applicant.
Such waivers are to be provided immediately and are expected to cover both substantive and procedural information. Typically, a Canadian lawyer represents the Applicant in its dealings with the Bureau, although foreign counsel may be present at certain meetings. When in Canada, foreign counsel must ensure that they are acting in accordance with the requirements of the relevant provincial law society or bar association. Arrangements entered into in respect of a coordinated defence to a civil action must be subordinate to the overriding commitment owed under the Immunity Program and the terms of the immunity agreement.
Moreover, the Applicant must keep the Bureau and the PPSC apprised on an ongoing basis of the general status of any civil action in which it is involved. The Bureau has no interest in forestalling cooperation, or in penalizing an Applicant for cooperating in a civil action.
A written opinion provided under section If the prosecution eventually seeks an indictment against an immunized witness, the prosecutor and law enforcement must show that the case is based solely on evidence that's independent of the witness's immunized testimony. A witness who is being prosecuted and intends to claim immunity from prosecution must provide evidence that the prosecution granted immunity and that the testimony in question relates to the current charges.
After that, the burden of proof goes to the government. Prosecutors must show that all of the evidence they intend to use comes from an independent source. If the prosecution had access to the immunized testimony, it must reveal how it developed independent evidence against the defendant. It's not enough for the prosecution to simply deny using the immunized testimony—it must present evidence either written or oral statements explaining how the evidence doesn't emanate from the defendant's previous testimony.
However, it's okay if the prosecution had tangential knowledge of the immunized testimony. If a judge rules that prosecutors have improperly used immunized testimony, the usual remedy is to block them from using it at trial. If there's no evidence that's entirely distinct from the immunized testimony, the court will dismiss the case.
Immunity is a privilege; the immunized person can therefore waive it. One way is to explicitly state the intention to waive the privilege. For example, a witness who has received immunity may sign a written statement to the court waiving immunity and acknowledging that he is now subject to prosecution. Waiver also happens when a witness has immunity, but doesn't assert it in a timely manner—for example, by freely giving a statement to the police after receiving Miranda warnings, not mentioning that he has immunity until trial.
A witness can also waive any chance at immunity before receiving it. This happens when a witness testifies voluntarily without the protection of immunity. Once a person has waived immunity, the government can use the previously immunized testimony to prosecute him or her. For example, transactional immunity is a bargain between the witness and the prosecutor. This type allows the witness to enjoy immunity from prosecution for the offenses involved in the direct case. The transactional form is often called total immunity because it is the most comprehensive form of immunity that can be offered to a witness.
However, the witness can still be charged for other items that are unrelated to the testimony given under immunity. Use immunity provides a more limited scope of protection to the witness.
Understanding the various legal immunity types can be helpful in the unfortunate situation that faces so many people every year. Learning about transactional vs use immunity can assist in the process of determining the next legal steps to take. The transactional type of immunity is more common at the state level, and use or derivative immunity is more common at the federal level. During his testimony, Witness reveals that he used his portion of the money stolen from the bank to purchase cocaine from Dealer.
Can Witness be successfully prosecuted for bank robbery? The grant of transactional immunity protects him. Can Witness be successfully prosecuted for buying cocaine? Transactional immunity guarantees that Witness cannot be prosecuted for any criminal activity he discussed during his immunized testimony. What if the prosecution learns elsewhere about a different drug purchase?
If, after Witness testifies in Defendant's trial, the prosecution learns from Dealer that Witness came to him two months before the bank robbery and purchased heroin, Witness won't be so fortunate.
The prosecution can charge him for that purchase because it's unrelated to the events Witness testified to: The purchase of heroin occurred before the bank robbery and was unrelated to either that crime or the cocaine purchase he mentioned.
Use and derivative use immunity is more common used by both state and federal prosecutors and narrower than transactional immunity. It prevents the prosecution from using the witness's statements "use" or any evidence derived from those statements "derivative use" against the witness in a criminal prosecution.
In theory, use and derivative use immunity provides as much protection as the witness not testifying. However, use and derivative use immunity doesn't prevent prosecutors from gathering additional, independent evidence to later use against a witness.
If, while testifying, a witness gives an indication of having committed a crime and the prosecution obtains independent evidence of that crime from a source distinct from the witness , then the witness is subject to prosecution for that crime. For example, suppose the prosecution grants Witness use and derivative use immunity for testifying in Defendant's armed robbery trial. Witness states that after he and Defendant robbed the bank, he took some of the stolen money and used it to buy kilograms of cocaine from Dealer.
Witness then sold the kilograms of cocaine to Buyer. Can the prosecution get Witness for armed robbery? Yes, but the prosecution cannot use Witness's immunized testimony against him.
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