3.3 Immunity Agreements
Public Prosecution Service of Canada Deskbook
Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act
March 1, 2014
Table of Contents
- 1. Introduction
- 2. Purpose of the Guideline
- 3. Definition of
- 4. Types of Immunity
- 5. Criteria to Apply Regarding Offers of Immunity
- 5.1. Seriousness of the offence
- 5.2. Reliability of the person
- 5.3. Reliability of the anticipated evidence
- 5.4. Full and candid disclosure
- 5.5. The importance of the person's testimony or co-operation
- 5.6. The nature and extent of the person’s involvement in the offence
- 5.7. Other forms of reward
- 5.8. The person’s history of co-operation
- 5.9. Protection of the public
- 5.10. Disclosure prior to detection
- 5.11. Inappropriate criteria
- 6. The Conduct of Negotiations
- 7. The
- 8. Out-of-custody Cooperating Witnesses
- 9. Breach of Agreements
- 10. Filing of the Agreement in Court
“A”– Agreement Checklist
“B”– Immunity Agreement
“C”– Investigative Assistant Agreement
Those who have violated the law should be held accountable for their crimes. However, some crimes can be proved only by the testimony or cooperation of individuals who are implicated in the same crime or in some other criminal activity and who seek immunity from prosecution in exchange for their testimony and/or their cooperation with the police. Emphasis by investigating agencies on the investigation of the upper echelons of criminal organizations often heightens the need to rely on the evidence or assistance of co-operating accomplices, or other persons with outstanding charges, to prove offences.
While the cooperation of these individuals has been recognized as a very powerful tool in the battle against crime, it brings with it the very real risk that individuals will falsely accuse others and/or minimize their own culpability in the hope of securing immunity. Great care therefore must be taken in dealing with individuals seeking immunity.
2. Purpose of the Guideline
The purpose of this guideline is to:
- set out the applicable criteria in determining whether the Crown should enter into an immunity agreement with someone who may otherwise be prosecuted;
- provide guidelines for Crown counsel on the proper handling of co-operating information-providersFootnote 1 both in and out of court;
- distinguish the role of Crown counsel from that of the investigating agency in the immunity-seeking process.
While the focus of this guideline is on immunity agreements with potential Crown witnesses, the principles, procedures and criteria described here apply, with necessary adaptations, when the Crown is contemplating granting other forms of consideration (including use immunity) in exchange for providing testimony, information, assistance or other forms of cooperation with the Crown and/or investigative agency.
This guideline must be applied in conjunction with the PPSC Deskbook guideline
“3.11 Informer Privilege”.Footnote 2
3. Definition of
The term “immunity agreement” in this guideline 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 providing 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 guideline.
4. Types of Immunity
Courts have recognized the legal basis of a power to grant immunity despite the absence of any express provision in the Criminal Code (Code) authorizing the practice.Footnote 3 There are various mechanisms by which the Crown can confer immunity under Canadian criminal law.
4.1. Stay of proceedings
Pursuant to s. 579 of the Code, the Director of Public Prosecutions (DPP) or his or her delegate has the statutory power to stay existing criminal proceedings in appropriate cases. If the Crown wishes to recommence the prosecution, 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 time 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 DPP to stay proceedings does not include the power to stay prosecutions conducted by provincial prosecution authorities, unless there is ad hoc or standing delegated authority for the provincial charges (for example a major-minor agreement between prosecution services).Footnote 4 Accordingly, the agreement must be worded carefully 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 a provincial attorney general. Crown counsel may respond to a request for consultation from the provincial representative, or initiate consultation with provincial authorities where appropriate.
4.2. Immunity from future prosecutions
The DPP is also entitled to provide an assurance of immunity against future prosecutionFootnote 5 for crimes that the information-provider is known to have already committed, but for which no charges have yet been laid.
“Use immunity” investigative assistance agreements
Traditionally, requests for immunity were made upon completion of the investigation. In recent years, however, Crown counsel and investigative agencies increasingly 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.
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 information provided will not be used directly against them for investigative purposes.
This form of immunity agreement is referred to as
“use immunity”. It differs somewhat from immunity agreements discussed elsewhere in this guideline 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 “Investigative Assistance Agreements” which bind the DPP. A sample is found as Appendix “C”.
Investigative Assistance Agreements must be approved by Crown counsel in consultation with their Chief Federal Prosecutor (CFP) or Deputy CFP.Footnote 6 The CFP should retain a copy of such agreements.
4.4. Guarantees of immunity for Competition Act offences
Pursuant to the Competition Bureau's Immunity Program, persons or corporations with information concerning anti-competitive business practices such as bid-rigging and price fixing are encouraged to make disclosure to the Competition Bureau. The policy respecting immunity agreements in relation to Competition Act investigations and offences is set out in a separate PPSC Deskbook guideline entitled
“5.2 Competition Act”.
5. Criteria to Apply Regarding Offers of Immunity
Immunity from prosecution is provided only 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. However, immunity should be the exception rather than the norm. The DPP is responsible for the conduct and supervision of all federal prosecutions in Canada. Thus, only the DPP through Crown counsel, and not the investigating agency, is entitled to confer immunity from prosecution.Footnote 7
In determining whether immunity may be appropriate, Crown counsel should weigh all relevant circumstances, including the following:
5.1. 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 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.
5.2. Reliability of the person
The dangers associated with reliance upon immunity-seekers are well known.Footnote 8 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.
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.Footnote 9
However, truthfulness should not be equated with moral character, as Toy J. pointedly observed in Re Meier:Footnote 10
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.
Counsel should be cautious in providing immunity to persons with a history of serious criminal activity. While it may sometimes be appropriate to provide immunity to such persons in order to prosecute more serious offenders, counsel must be aware the person’s testimony will be viewed with great caution by the trier of fact; in some circumstances, reliance on such a witness may be damaging to the Crown’s case.
5.3. Reliability of the anticipated evidence
Crown counsel should be satisfied that the anticipated evidence is reliable. Crown counsel should ensure that the investigating agency has attempted to confirm the reliability of the information provided and that the most knowledgeable investigators on the case have reviewed all the facts and circumstances of the case that are known to the Crown. This usually involves Crown counsel conducting 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 consistent 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.
5.4. Full and candid disclosure
The information-provider must be candid about his or her involvement in criminal activity.Footnote 11 When meeting with the information-provider respecting potential immunity, Crown counsel must 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. If the person subsequently testifies, Crown counsel will be required to place the person's full criminal record before the court.Footnote 12 Crown counsel must also 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 to criminal activity abroad, over which the DPP lacks prosecutorial authority. The information-provider must be advised that the DPP cannot bind other prosecutorial authorities.
5.5. The importance of the person's testimony or co-operation
Crown counsel should also assess the relative 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 make it sufficiently important to warrant immunity.
5.6. The nature and extent of the person’s involvement in the offence
Crown counsel should 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.Footnote 13 Nor does the fact that the accomplice has been indicted separately for the offence, or for some other offence, render the accomplice non-compellable at the instance of the Crown.Footnote 14 The accomplice's evidence is, however, viewed with great caution.Footnote 15 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.Footnote 16
5.7. Other forms of reward
The public interest may not be served by providing immunity against prosecution to a person who has committed a particularly serious offence. Lesser forms of
“reward” such as a joint submission for a reduced sentence should also be considered.Footnote 17
5.8. The person’s history of co-operation
Counsel should consider whether the person has co-operated with law enforcement officials in the past, either as a witness or an informer, and whether the person has previously entered into 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.
5.9. 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 than by relying on that person as a witness in the prosecution of another accused.
5.10. 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.
5.11. Inappropriate criteria
The decision to confer or withhold immunity should never be improperly influenced by factors such as race, nationality, or religion. Nor may these decisions be influenced by partisan political considerations. Crown counsel must remain objective in deciding whether to grant immunity.
6. The Conduct of Negotiations
In negotiating immunity agreements, Crown counsel have numerous responsibilities. More particularly, Crown counsel should:
- strongly encourage the immunity-seeker to obtain the assistance of legal counsel before entering into any immunity agreement and negotiate through this lawyer;
- whenever possible, limit his or her meetings with the person and deal primarily with the other lawyer until the agreement is finalized and ready for signature;
- never meet the immunity-seeker alone (i.e., the investigating officer should always be in attendance);
- maintain detailed records of all negotiations with the immunity-seeker and his or her lawyer leading up to the agreement;
- be diligent not to expose the immunity-seeker to facts or evidence about the prosecution to which his or her testimony, information, assistance or cooperation will apply;
- canvass the areas usually explored in cross-examination before deciding whether to conclude the agreement;
- be fully aware of the circumstances, such as who approached whom, the numbers of interviews and the parties attending, whether the interviews were recorded;
- explore whether, during the debriefing process, the information-provider consciously or unconsciously may have absorbed facts previously unknown to him or her, that investigators had obtained from other sources;Footnote 18
- make it clear that he or she does not have unfettered discretion to approve any immunity agreement that is negotiated; rather any such agreement must be approved in accordance with the procedures outlined in this guideline;
- be familiar with the PPSC Deskbook guideline
“3.7 Resolution Discussions”;Footnote 19
- reduce to writing any immunity agreement that is negotiated and ensure that the written agreement is signed by the immunity-seeker and, if applicable, his or her lawyer;
- avoid agreeing to grant complete immunity from criminal responsibility unless it is absolutely necessary in order to obtain the required testimony, information, assistance or cooperation. The granting of a limited form of immunity is generally preferred;
- Crown counsel should explore the following potential, and non-exhaustive, terms of any immunity agreement:
- dropping charges;
- reducing charges;
- dropping or reducing the charges of others, such as family members or friends;
- agreeing to a lesser sentence;
- the timing of dealing with outstanding charges;
- the resolution of pending applications for the return of offence-related property or proceeds of crime;
- reward money; and
- the circumstances under which the agreement could be terminated.
Additionally, certain factors over which Crown counsel have no control may be appropriately contained within immunity agreements. Crown counsel should also be aware of certain matters that arise in the immunity agreement negotiations between the investigators and the information-provider, including:
- circumstances prompting relocation;
- providing of a new identity;
- all payments of money (lump sum, monthly allowance, relocation expenses);
- assistance in securing employment; and
- special privileges while in jail or under the control of the police pursuant to s. 527(7) of the Code;
6.1. Consultation required before concluding an 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.
First, Crown counselFootnote 20 must consult with the CFP before entering into an immunity agreement. In cases of significant public interest, the CFP should consult the appropriate Deputy Director of Public Prosecutions (Deputy DPP) before finalizing an arrangement. As well, before taking recourse in other proceedings against a person who has breached the immunity agreement, CFPs must consult the appropriate Deputy DPP.
Second, in most cases, the immunity process begins with discussions between the information-provider and the case investigators without prior consultation with Crown counsel. Following these discussions, investigators usually approach the prosecutor. Crown counsel rely on the investigating agency’s input in weighing the relevant public interest criteria. Crown counsel should be satisfied that the agency’s lead investigator responsible for overseeing such agreements has reviewed and approved the proposed agreement. The investigating agency makes a recommendation to Crown counsel. However Crown counsel bears the ultimate responsibility for deciding who is prosecuted and who is called as a witness.
Third, where the offence for which immunity is being offered is alleged to have been committed in multiple provinces or territories, Crown counsel may wish to consult with other Regional Offices either (a) to ascertain whether that office, or the local police forces, may have information relevant to the immunity seeker’s reliability or (b) to ascertain whether there may be any outstanding charges in iCase.Footnote 21
Fourth, although the agreement signed on behalf of the DPP does not extend to prosecutions that may be commenced by provincial authorities, or to crimes undisclosed by the witness, it will sometimes be desirable to discuss the proposed immunity agreement with provincial authorities if the provincial Attorney General (or DPP) has jurisdiction to prosecute other offences committed by the person. 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.
“In-custody” InformerFootnote 22
When the information-provider in question can be categorized as a
“in-custody” informer, together with all of the other considerations set out in this chapter, it is important to examine additional factors. 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 case:Footnote 23
An in-custody informer is someone who allegedly receives one or more statements from an accused while both are in custody, and where the statements relate to offences that occurred outside of the custodial institution. The accused need not be in custody for, or charged with, the offences to which the statements relate. Excluded from this definition are informers who allegedly have direct knowledge of the offence independent of the alleged statements of the accused (even if a portion of their evidence includes a statement made by the accused).
The use of in-custody informers has been identified as a significant contributing factor in cases of wrongful conviction.Footnote 24 There are four issues to which Crown counsel should pay particular attention when dealing with an in-custody informer.
As stated in the Kaufman Report:
Jailhouse informant evidence is intrinsically, though not invariably, unreliable and many of us have failed in the past to appreciate the full extent of this unreliability. It follows that prosecutors must be particularly vigilant in recognizing the true indicia detracting from, or supporting, [their] reliability.Footnote 25
At a minimum, Crown counsel should subjectively assess the jailhouse informer’s proposed testimony and examine the details of the evidence, possible motives for lying, and the possibility of collusion, where there is more than one in-custody informer.”Footnote 26
In addition to the factors listed in sections 5.1-5.6, in assessing credibility, Crown counsel should consider the following factors:
- The jailhouse informer’s background, including
- his or her psychological and psychiatric profiles;
- any prior claims of having received in-custody statements;
- reliability of any previous information;
- any prior testimony;
- any convictions for offences involving dishonesty;
- The circumstances of the informer’s incarceration, including the placement of the informer within the prison facility and access to information about the crime in question;
- Relationship between the informer and the police and the circumstances surrounding the giving of the
- When, where and how was the statement made?
- Did the police solicit the evidence?
- Any prior association between the in-custody informer and the police officer involved with the investigation?
- Did the police approach the informer prior to
- Did the police provide information to the informer prior to the making of the statement?
- Did the police ask leading questions?
- The circumstances surrounding the disclosure of the alleged statement to the Crown;
- The benefits sought or received in return for the information;
- External corroboration
- The use of tests to ensure reliability (for example, polygraph examinations);
- The extent to which the statement is corroborated by other evidence.Footnote 27
- The specificity of the statement; for example, does it contain details or leads known only to the culprit?
7.2. The approval process for the use of the in-custody informer
Where Crown counsel has addressed the factors set out above, and is satisfied that the informer evidence is credible, Crown counsel should recommend to the CFP that the informer be called as a witness.Footnote 28 The CFP makes the final decision.
7.3. Informer benefits
Crown counsel who is prosecuting the accused should not conduct the negotiation of such benefits. Furthermore, the benefits should never be conditional on whether the Crown obtains a conviction of the accused.Footnote 29 The benefits ultimately agreed upon are subject to disclosure.
8. Out-of-custody Cooperating Witnesses
Out-of-custody cooperating witnesses are not subject to the same pressures and opportunities to seek favourable treatment or special privileges in jail, as are in-custody witnesses. The fact that a cooperating witness is not in jail does not obviate the need for the Crown to exercise a high degree of care in assessing the reliability of the evidence and the other factors outlined above, including those highlighted in respect of in-custody cooperating witnesses. There is always a concern in relation to the potential for the fabrication of evidence whenever any witness is offering information in a context in which he or she may receive a benefit- whether money, privilege, immunity or a reduced sentence- as a result of their cooperation.
While each case will be fact-specific, Crown counsel should consult their CFP where their careful assessment of the out-of-custody cooperating witness’ credibility has identified matters of concern. A case in which Crown counsel is uncertain as to whether the testimony of the witness is sufficiently corroborated by other evidence would clearly fall within this category.
The CFP may also refer cases to the Major Case Advisory CommitteeFootnote 30 for its consideration.
9. 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;Footnote 31
- 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 charged 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. The terms of the agreement with the person and the manner in which it was breached will be important considerations.Footnote 32 In some circumstances, the laying of charges against the witness (or the recommencement of proceedings under s. 579(2) of the Code) may amount to an abuse of process.Footnote 33
10. 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.
“A” – Agreement Checklist
Contents of Immunity Agreements: a Checklist
An immunity agreement must be executed before a witness testifies. It must be in writing, be signed and be given to the witness before testifying, and must include the following information:
- the names of all parties to the agreement to obtain immunity;
- the name of any other person intended to benefit from the agreement;
- the acts or omissions in respect of which the immunity is provided;
- the scope of the agreement, for example, that it does not extend to prosecutions that may be commenced by provincial authorities, or to crimes undisclosed by the witness;
- the form the immunity will take (for example, staying existing charges, undertaking not to proceed on potential charges);
- the evidence, information, co-operation, assistance or other benefit to be exchanged for the immunity;
- any additional commitments made by the parties, including the specifics of any expenditures to be made by the Crown;
- a general description of what will amount to a breach of the agreement, and the consequences of such a breach; and
- a stipulation that information or evidence provided under an agreement must be truthful.
“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.Footnote 34
John Doe agrees to:
[set out all details of proposed co-operation]
The Director of Public Prosecutions agrees to:
It is understood by John Doe and the Director of Public Prosecutions that:
- Full and frank disclosure regarding [state in general terms] by John Doe forms an essential term of this agreement;
- 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;
- 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 Director of Public Prosecutions and John Doe.
Dated at the City of _______, in the Province/Territory of ___________, the___ day of___ , 201_.
John Doe Counsel agent of the Director of Public Prosecutions and Deputy Attorney General of Canada
Counsel for John Doe
I received a copy of this agreement on the___ day of___ , 201_.
“C” – Investigative Assistant Agreement
Sample Investigative Assistance 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.
1. Parties to the Agreement
THIS AGREEMENT is between
the Crown in Right of Canada, as represented by the Director of Public Prosecutions, or his/her delegated agent and by the investigating agency, namely the____________________________; and _____________________________;
(name of information-provider)
WHEREAS the _________________________________________ [the investigating agency] have been and are continuing to investigate the following persons or activities, namely _______________________________ [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 in this agreement or as may be later mutually agreed; and
WHEREAS the investigating agency, having consulted with the delegated agent of the Director of Public Prosecutions, wishes to receive this information and, together with the Director of Public Prosecutions, is prepared to give these assurances on behalf of the Crown in Right of Canada, in return.
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 these 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 them, 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 Director of Public Prosecutions, in which [name] is charged as an accused person except in the case of:
- [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
- [name] being charged, as a result of anything said or done by him/her during the course of these 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 Director of Public Prosecutions, in which [name] is charged as an accused person, except in the case of the events set out in 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].
4.1 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:
- 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
- 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.
5.1 It is fundamental to this agreement that [name] disclose to the investigating agency fully, straightforwardly, and truthfully, all the information and documents that [name] 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 confidence imposed by this agreement; 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 this 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 this agreement.
6. Acknowledgement by [Name]
I acknowledge that I have received a copy of this agreement, 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 in this agreement. 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 Director of Public Prosecutions
for the Investigating Agency
Counsel for (name)
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