The issue in World Bank Group v. Kevin Wallace et al 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 intervened in the case to argue that the answer must be “no”. The right to make full answer and defence requires the full disclosure of these types of files, which could contain exculpatory evidence that is beneficial to the accused. This necessitates the recognition of an implied waiver of immunity in certain circumstances.
This prosecution arose from a World Bank investigation into allegedly corrupt practices of Canadian representatives of SNC-Lavalin. 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 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 lower court found that the World Bank had implicitly waived its immunity by becoming involved in the domestic prosecution: 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. 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 argued 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 affords the accused a fair trial.
The Supreme Court of Canada released its decision on April 29, 2016 and allowed the World Bank’s appeal. The Court ruled that the World Bank enjoys broad statutory immunity from domestic court processes that can only be waived explicitly.
The BCCLA was represented by Nader Hasan and Gerald Chan of Stockwoods LLP.
The Supreme Court of Canada’s decision is available here.