In a recent decision, the Supreme Court of Canada granted jurisdictional immunity to institutional members of the World Bank Group where Canadians had been charged under the Corruption of Foreign Public Officials Act (“CFPOA”) - see World Bank Group v. Wallace, 2016 SCC 15.
The court's decision was jointly written by Justices Moldaver and Cote. The Supreme Court provided an introduction to its decision by stating that because corruption was a significant obstacle to international development, worldwide cooperation was needed to fight corruption. When international financial organizations, such as the World Bank Group, shared information gathered from informants across the world with the law enforcement agencies of its member states, they achieved what neither could do on their own. In consideration of this cooperation, member states often agreed to grant such international organizations immunities and privileges to preserve their independent operation.
In this case, the World Bank Groups’ Integrity Vice Presidency (“INT”) investigated allegations that representatives of the Montreal based company SNC-Lavlin Inc. (“SNC-Lavlin”) were planning to bribe officials of the Government of Bangladesh to obtain a contract related to the construction of the Padma Multipurpose Bridge, a project valued at US$2.9 billion. The World Bank Group shared some of the information from its investigation with the RCMP. On the basis of this information and other information gathered by the RCMP, the Mounties obtained wiretap authorizations. The RCMP charged, among others, former employees of SNC-Lavlin with offences under the CFPOA.
The accused challenged the RCMP wiretap authorizations and applied for a third party production order to compel senior investigators of the World Bank Group to appear before a Canadian court to produce documents.
Justice Nordheimer of the Ontario Superior Court of Justice granted the application. The World Bank Group appealed that decision to the Supreme Court of Canada with leave. The Supreme Court allowed the appeal on both issues which were argued before it.
The World Bank Group is an international organization headquartered in Washington, D.C. It is composed of five separate organizations. Canada has ratified the Articles of Agreement and the conventions establishing the various member organizations of the World Bank Group.
The World Bank Group provides loans, guarantees, credits and grants for development projects and programs in “developing” countries. Of the US$2.9 billion cost for the Padma Bridge Project, the World Bank Group was to lend the Government of Bangladesh US1.2 billion. SNC-Lavlin was one of several companies bidding for a contract to supervise the construction of the bridge.
The INT is responsible for investigating allegations of fraud, corruption and collusion, in relation to projects financed by the World Bank Group. In 2010, the INT received the first of a series of emails suggesting that there was corruption in the process for awarding the project's supervision contract. The tipsters alleged SNC-Lavlin employees were negotiating to pay a portion of the contract amount to Bangladeshi officials in exchange for favourable treatment.
The INT contacted the RCMP and shared the tipsters’ emails, investigative reports and other documents with the RCMP. The RCMP then sought a wiretap authorization to intercept private communications pursuant to the provisions of the Criminal Code. The authorization was granted along with two further authorizations.
As a result, several individuals were charged with offences under the CFPOA. The World Bank Group cancelled its financing for the Padma Bridge Project and barred SNC-Lavlin from participating in World Bank Group-funded projects for 10 years.
The accused sought to challenge the wiretap authorization and sought an order requiring production of certain INT records. However, the Articles of Agreement provided that the two affected member organizations of the World Bank Group and their officers and employees would be immune from legal process with respect to acts performed by them in their official capacity.
The two issues that were raised on the application were:
- Whether the World Bank Group could be subject to a production order issued by a Canadian court given the immunities accorded to its members; and
- If so, whether in the context of a challenge to the wiretap authorizations, the documents sought met the test for relevance.
At trial, Justice Nordheimer found that the World Bank Group had waived the immunities granted to it by participating in the RCMP investigation. On the second issue, he concluded that the documents were likely relevant to issues that could arise on the production application and ordered that the documents be produced for review by the court.
The Supreme Court of Canada held that the Articles of Agreement provided the legal foundation for the World Bank Group's integrity regime and by extension the INT. Accordingly, the immunities outlined in those Articles of Agreement shielded the documents and personnel of the INT. The court held that that "immunity" should be given a broad interpretation. It also held that any waiver of the immunity must be express, i.e. while personnel immunity can be waived, the object and purpose of the treaty favoured an express waiver requirement.
With respect to the issue of relevance of the documents sought to be produced, the Supreme Court held that Justice Nordheimer erred in that respect as well. To obtain third party records in such an application, the accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play. The “reasonable likelihood" threshold is appropriate to the context and fair to the accused.
In this case, although Justice Nordheimer correctly placed the burden on the accused, he did not properly assess the relevance of the documents being sought. While the documents sought might be relevant to the ultimate truth of the investigation in the affidavits sworn by the RCMP, they were not reasonably likely to be of probative value to what the RCMP sergeant knew or ought to have known when he swore his information to obtain the wiretap authorization since he did not consult them.