Proffer

The Competition Bureau (Bureau) has established formal Immunity and Leniency Programs under which parties to criminal offences committed under the Competition Act may apply for immunity from prosecution or leniency in sentencing.

Both of the Bureau’s Programs include multiple required steps to obtain immunity or leniency. A common step for both Programs, after a marker is obtained (that is, a place in line in each respective program for an applicant), is to provide a “proffer” to the Bureau. In general, the Bureau requires that proffers be completed within 30 calendar days after an immunity or leniency marker has been obtained unless an extension has been obtained.

In a proffer, an immunity or leniency applicant provides additional detailed information to the Bureau relating to the offence for which immunity or leniency is sought. Proffers are usually made orally (read out by an applicant’s counsel) and typically include a detailed description of the offence demonstrating each element of the offence, the applicant’s role in the offence and the connection of the offence to Canada. Immunity or leniency applicants must also outline all of the supporting evidence and witnesses that it is aware that it can provide at that point in time.

The preparation of a proffer can be a significant task and involve hardcopy and electronic document searches, identifying and interviewing witnesses, performing a preliminary assessment of the relevant market and synthesizing this information into a scripted statement.

The Bureau considers a proffer to be complete under its Immunity Program when it has received sufficient information to make a comprehensive recommendation to the Director of Public Prosecutions (DPP) that it issue a Grant of Interim Immunity for all conduct contemplated under the applicant’s immunity marker. The Bureau considers a proffer to be complete under its Leniency Program when it has received sufficient information to make a comprehensive leniency recommendation to the DPP based on all available relevant information.

For more information, see Immunity and Leniency Programs under the Competition Act, Competition Bureau Bulletin, September 27, 2018, at sections 56-72.