November 5, 2015
For immediate release

Ottawa – Tomorrow, the Supreme Court of Canada will hear arguments in World Bank Group v. Kevin Wallace et al. The issue in this case is whether an international organization such as the World Bank — having conducted an investigation that resulted in domestic criminal charges in Canada— can place its investigative files beyond the reach of the defence merely by asserting immunity. The BCCLA is intervening in the case to argue that the answer must be “no”, and that the right to make full answer and defence, which is protected under both domestic and international law, necessitates the recognition of an implied waiver of immunity in certain circumstances.   

This prosecution arose from a World Bank investigation into corrupt practices of Canadian officials. The World Bank handed over the fruits of its investigation to the RCMP.  Based on that information, the RCMP obtained a wiretap authorization to intercept various communications and laid criminal charges. The Crown disclosed the information in the possession of the RCMP to the defence. The defence sought further disclosure of the World Bank’s underlying investigative files, and brought a third party records application against the World Bank. The World Bank declined to turn over its files, claiming it enjoys statutory immunity from such court orders.

The relevant statute states that employees of the World Bank “shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives this immunity”. [emphasis added] The question is whether the actions of the World Bank – handing over investigative findings to the RCMP; making one of its investigators available to give evidence at the preliminary hearing; and seeking to obtain the information gathered as a result of the Part VI interception for its own purposes – constitute a waiver of this immunity. Justice Nordheimer of the Ontario Superior Court of Justice found that the World Bank had implicitly waived its immunity through this conduct.

Canada has obligations under international law to investigate and prosecute foreign bribery; however, it must do so in a manner that respects the right of the accused to a fair trial.  This encompasses the right to disclosure and the right to make full answer and defence.  The BCCLA will argue that under the doctrine of implied waiver, there will come a point at which the World Bank Group has become so enmeshed in the domestic criminal justice system that it will be treated as having waived its immunity from judicial orders made in the criminal proceedings.  This must be a fact-sensitive, contextual inquiry driven by an overriding concern for fairness.  This type of analysis is necessary to ensure that the rights of the accused do not get lost in the overwhelming drive to prosecute foreign corruption. The two obligations are complementary, not conflicting.  Canada cannot investigate and prosecute foreign corruption with any legitimacy unless it also affords the accused a fair trial.

The BCCLA is represented by Nader Hasan and Gerald Chan of Stockwoods LLP.

The BCCLA’s argument in this case is available here.

• What: Supreme Court of Canada to hear arguments in World Bank Group v. Kevin Wallace et al
• When: Oral arguments will begin on Friday, November 6, 2015 at 9:30 a.m. (EST) / 6:30 a.m. (PST)
  Where: Supreme Court of Canada (Ottawa, Ontario)
  Who: Representatives of the BCCLA available for comment