World Bank Group v. Wallace

World Bank Group v. Wallace
Collection
Supreme Court Judgments
Date
2016-04-29
Neutral citation
2016 SCC 15
Report
[2016] 1 SCR 207
Case number
36315
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Ontario
Notes
SCC Case Information: 36315
Decision Content
SUPREME COURT OF CANADA
Citation: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207
Appeal heard: November 6, 2015
Judgment rendered: April 29, 2016
Docket: 36315
Between:
World Bank Group
Appellant
and
Kevin Wallace, Zulfiquar Bhuiyan,
Ramesh Shah, Mohammad Ismail and
Her Majesty The Queen in Right of Canada
Respondents
- and –
Criminal Lawyers’ Association (Ontario), Transparency International Canada Inc., Transparency International e.V., British Columbia Civil Liberties Association, European Bank for Reconstruction and Development, Organisation for Economic Co-operation and Development, African Development Bank Group, Asian Development Bank, Inter-American Development Bank and Nordic Investment Bank
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Joint Reasons for Judgment:
(paras. 1 to 149)
Moldaver and Côté JJ. (McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Brown JJ. concurring)
World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207
World Bank Group Appellant
v.
Kevin Wallace,
Zulfiquar Bhuiyan,
Ramesh Shah,
Mohammad Ismail and
Her Majesty The Queen in Right of Canada Respondents
and
Criminal Lawyers’ Association (Ontario),
Transparency International Canada Inc.,
Transparency International e.V.,
British Columbia Civil Liberties Association,
European Bank for Reconstruction and Development,
Organisation for Economic Co‑operation and Development,
African Development Bank Group, Asian Development Bank,
Inter‑American Development Bank and Nordic Investment Bank Interveners
Indexed as: World Bank Group v. Wallace
2016 SCC 15
File No.: 36315.
2015: November 6; 2016: April 29.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the ontario superior court of justice
Public international law — Jurisdictional immunity — International organizations — Financial institutions — Accused in Canadian criminal proceedings applying for third party production order to compel senior investigators of international financial organization to appear before court and produce documents — International financial organization claiming archival and personnel immunities under its Articles of Agreement — Whether claimed immunities apply to international financial organization — Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B‑7 , Sch. II, arts. I, III, s. 5(b), art. VII, ss. 1, 3, 5, 6, 8, Sch. III, arts. I, V, s. 1(g), (h), art. VIII, ss. 1, 3, 5, 6, 8.
Criminal law — Evidence — Disclosure — Interception of communications — Accused charged with bribing foreign public officials — Accused challenging wiretap authorizations on Garofoli application — Accused seeking production of documents held by third party international financial organization and validation of subpoenas to organization’s personnel in support of application — Whether documents sought by accused are relevant to Garofoli application — Proper threshold for third party production on a Garofoli application.
The World Bank Group is an international organization headquartered in Washington, D.C. composed of five separate organizations, including the International Bank for Reconstruction and Development (“IBRD”) and the International Development Association (“IDA”). Each constituent organization has its own set of governing documents which set out the immunities and privileges the organization is to enjoy in the territory of each member state.
The World Bank Group provides loans, guarantees, credits and grants for development projects and programs in developing countries. The World Bank Group was originally one of the primary lenders for the project at the heart of this case, the Padma Multipurpose Bridge in Bangladesh. SNC‑Lavalin Inc. was one of several companies bidding for a contract to supervise the construction of the bridge. The four individual respondents — three former employees of SNC‑Lavalin and one representative of a Bangladeshi official — allegedly conspired to bribe Bangladeshi officials to award the contract to SNC‑Lavalin. They are all charged with an offence under the Canadian Corruption of Foreign Public Officials Act.
The Integrity Vice Presidency (“INT”) is an independent unit within the World Bank Group responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group. It was the INT that had initially received a series of emails from tipsters suggesting there was corruption in the process for awarding the supervision contract, involving SNC‑Lavalin employees. The INT later shared the tipsters’ emails, its own investigative reports and other documents with the Royal Canadian Mounted Police (“RCMP”).
The RCMP then sought and obtained authorizations to intercept private communications in order to obtain direct evidence of the accused’s participation in corruption, as well as a search warrant. Sgt. D was assigned to prepare affidavits for the application. He largely relied on information the INT shared based on its communications with the tipsters, as well as knowledge of the bidding process of a senior investigator with INT. Sgt. D also spoke directly to one of the tipsters. Sgt. D did not make any handwritten notes of his work as affiant. All of his emails for the period of the investigation were lost because of a computer problem, though many were recovered through other sources.
The Crown charged the four accused under the Corruption of Foreign Public Officials Act and joined their proceedings by direct indictment. The Crown intends to present intercepted communications at trial. For their part, the accused seek to challenge the wiretap authorizations pursuant to R. v. Garofoli, [1990] 2 S.C.R. 1421. In support of their application, the accused sought an order requiring production of certain INT records, as well as the validation of two subpoenas issued to the investigators of the INT.
However, the Articles of Agreement of the IBRD and the IDA provide that their archives shall be inviolable. In addition, the Articles of Agreement provide that all officers and employees shall be immune from legal process with respect to acts performed by them in their official capacity, except when the IBRD or the IDA waives this immunity. These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act .
Two issues were raised on the application: (1) whether the World Bank Group could be subject to a production order issued by a Canadian court given the immunities accorded to the IBRD and the IDA, and (2) if so, whether in the context of a challenge to the wiretap authorizations pursuant to Garofoli, the documents sought met the test for relevance.
With respect to the first issue, the trial judge found that the immunities and privileges claimed were prima facie applicable to the archives and personnel of the INT. However, he determined that the World Bank Group had waived these immunities by participating in the RCMP investigation. In any event, he was not persuaded that the documents at issue were “archives”. Moreover, in his view, the term “inviolable” in the Articles of Agreement connoted protection from search and seizure or confiscation, but not from production for inspection. On the second issue, the trial judge concluded that the documents were likely relevant to issues that would arise on a Garofoli application. Accordingly, he ordered that the documents be produced for review by the court.
Held: The appeal should be allowed and the production order set aside.
Notwithstanding its operational independence, the INT’s documents form part of either the IBRD’s or the IDA’s archives, and the INT’s personnel benefit from legal process immunity for acts performed in an official capacity. Because the Articles of Agreement of the IBRD and the IDA provide the legal foundation for the World Bank Group’s integrity regime, and by extension the INT, the immunities outlined in those Articles of Agreement shield the documents and personnel of the INT.
Section 3 of Articles VII and VIII of the IBRD’s and the IDA’s Articles of Agreement, respectively, which confirms that the IBRD and the IDA can be the subject of a lawsuit in a court of competent jurisdiction, is not engaged in the present appeal. The present appeal involves a request for document production directed at personnel of the INT in the context of criminal charges. It is not the kind of action contemplated by s. 3.
Nor are the immunities outlined in ss. 5 and 8 of Articles VII and VIII, respectively, “functional” in the sense that the immunities only apply where it has been demonstrated that their application is necessary for the organization to carry out its operations and responsibilities. The signatory states of the Articles of Agreement set out, in advance, the specific immunities that enable the IBRD and the IDA to fulfill their responsibilities. The very wording of s. 1 of Articles VII and VIII suggests that this was an explicit choice. To import an added condition of functional necessity would undermine what appears to be a conscious choice to enumerate specific immunities rather than to rely on a broad, functional grant of immunity.
As regards the inviolability of the organization’s archives, the trial judge erred in construing so narrowly an immunity that is integral to the independent functioning of international organizations. The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.
The personnel immunity also applies since the challenged subpoenas required Mr. Haynes and Mr. Kim to give evidence. It is uncontested that the INT personnel were performing acts in their official capacity when they obtained the information that the accused now seek. It is also undisputed that the scope of the legal process immunity in s. 8 of Articles VII and VIII shields employees acting in an official capacity from not only civil suit and prosecution, but from legal processes such as subpoenas. While this personnel immunity can be waived, the object and purpose of the treaty favour an express waiver requirement. Given the absence of such express waiver, the trial judge erred in his finding that the World Bank Group waived this immunity.
Even if the World Bank Group did not possess any of the immunities identified in the Articles of Agreement, the production order should not have been issued under the framework for third party production set out in R. v. O’Connor, [1995] 4 S.C.R. 411. A Garofoli application is more limited in scope than a typical O’Connor application, relating as it does to the admissibility of evidence, namely intercepted communications. An O’Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address. The Garofoli framework assesses the reasonableness of a search when wiretaps are used to intercept private communications. A search will be reasonable if the statutory preconditions for a wiretap authorization have been met. A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds. What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn.
While the O’Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O’Connor application. To obtain third party records in a Garofoli application an accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play on such an application. This test for third party production is also consistent with another form of discovery on a Garofoli application: cross‑examination of the affiant. Both forms of discovery serve similar purposes and engage similar policy concerns. The justifications that warrant limiting cross‑examination of the affiant apply with equal force to third party production applications. The “reasonable likelihood” threshold is appropriate to the Garofoli context and fair to the accused.
The trial judge erred in assessing the accused’s arguments. Although he correctly placed the burden on the accused, he did not properly assess the relevance of the documents being sought. In particular, he blurred the distinction in a Garofoli application between the affiant’s knowledge and the knowledge of others involved in the investigation. In this case, that distinction is crucial. While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits, they are not reasonably likely to be of probative value to what Sgt. D knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the INT and other officers. Furthermore, accepting the argument that the INT’s records should be presumed relevant because first party documents were lost or not created would require a significant change to the O’Connor framework. Such a change is not necessary. Any loss of information must be addressed through the remedial framework set forth in R. v. La, [1997] 2 S.C.R. 680, which may well be the appropriate framework for addressing any prejudice resulting from the World Bank Group’s assertion of its immunities. The accused did not argue these issues on this appeal, and they are best left to the trial judge.
Cases Cited
Distinguished: Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015; applied: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. O’Connor, [1995] 4 S.C.R. 411; referred to: Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66, [2013] 3 S.C.R. 866; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343; Law Society of British Columbia v. Mangat, S.C.C., No. 27108, August 31, 2000 (Bulletin of Proceedings, September 29, 2000, p. 1542); Taypotat v. Taypotat, S.C.C., No. 35518, August 7, 2014 (Bulletin of Proceedings, August 29, 2014, p. 1292); Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Thomson v. Thomson, [1994] 3 S.C.R. 551; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Scimet v. African Development Bank (1997), 128 I.L.R. 582; Shearson Lehman Bros. Inc. v. Maclaine Watson & Co. (No. 2), [1988] 1 All E.R. 116; R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3), [2014] EWCA Civ 708, [2014] 1 W.L.R. 2921; Taiwan v. United States District Court for the Northern District of California, 128 F.3d 712 (1997); Iraq v. Vinci Constructions (2002), 127 I.L.R. 101; Owens, Re Application for Judicial Review, [2015] NIQB 29; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Sipes, 2009 BCSC 612; R. v. McKinnon, 2013 BCSC 2212; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721; R. v. Ahmed, 2012 ONSC 4893, [2012] O.J. No. 6643 (QL); R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Croft, 2013 ABQB 705, 576 A.R. 333; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Ali, 2013 ONSC 2629; R. v. Alizadeh, 2013 ONSC 5417; R. v. Way, 2014 NSSC 180, 345 N.S.R. (2d) 258; R. v. Bernath, 2015 BCSC 632; R. v. Edwardsen, 2015 BCSC 705, 338 C.R.R. (2d) 191; R. v. Lemke, 2015 ABQB 444; R. v. La, [1997] 2 S.C.R. 680.
Statutes and Regulations Cited
Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B‑7 , Sch. II, arts. I, III, s. 5(b), art. VII, ss. 1, 3, 5, 6, 8, Sch. III, arts. I, V, s. 1(g), (h), art. VIII, ss. 1, 3, 5, 6, 8.
Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 .
Criminal Code, R.S.C. 1985, c. C‑46 , Part VI, ss. 185, 186, 187(1.4).
International Development Association, International Finance Corporation and Multilateral Investment Guarantee Agency Privileges and Immunities Order, SOR/2014‑137.
International Monetary Fund and International Bank for Reconstruction and Development Order, P.C. 1945‑7421.
Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80‑64, s. 3(1).
Treaties and Other International Instruments
Charter of the United Nations, Can. T.S. 1945 No. 7, art. 105.
Convention on the Privileges and Immunities of the United Nations, Can. T.S. 1948 No. 2, art. II, s. 4.
Covenant of the League of Nations, art. 7, published in (1920), 1 League of Nations O.J. 3.
Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, art. 1(1)(k), “consular archives”.
Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29, art. 24.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, arts. 31, 32.
Authors Cited
Ahluwalia, Kuljit. The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations. The Hague: Martinus Nijhoff, 1964.
Black’s Law Dictionary, 10th ed., by Bryan A. Garner, ed. St. Paul, Minn.: Thomson Reuters, 2014, “archive”.
Canadian Oxford Dictionary, 2nd ed., by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 2004, “archive”.
Collins Canadian Dictionary. Toronto: HarperCollins, 2010, “archives”.
de Villers, Marie‑Éva. Multidictionnaire de la langue française, 5e éd. Montréal: Québec Amérique, 2009, “archives”.
Denza, Eileen. Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 3rd ed. Oxford: Oxford University Press, 2008.
Fedder, Edwin H. “The Functional Basis of International Privileges and Immunities: A New Concept in International Law and Organization” (1960), 9 Am. U.L. Rev. 60.
Fox, James R. Dictionary of International and Comparative Law, 3rd ed. Dobbs Ferry, N.Y.: Oceana Publications, 2003, “diplomatic archives”, “inviolability”.
Grant, John P., and J. Craig Barker, eds. Parry and Grant Encyclopaedic Dictionary of International Law, 2nd ed. Dobbs Ferry, N.Y.: Oceana Publications, 2004, “archives, diplomatic and consular”.
Hogg, Peter W. Liability of the Crown in Australia, New Zealand and the United Kingdom. Melbourne: Law Book Co., 1971.
Hubbard, Robert W., Peter M. Brauti and Scott K. Fenton. Wiretapping and Other Electronic Surveillance: Law and Procedure, vol. 2. Aurora, Ont.: Canada Law Book, 2000 (loose‑leaf updated February 2016, release 41).
Jenks, C. Wilfred. International Immunities. London: Stevens & Sons, 1961.
Jenks, C. Wilfred. “Some Problems of an International Civil Service” (1943), 3 P.A.R. 93.
Jenks, C. Wilfred. The Proper Law of International Organisations. London: Stevens & Sons, 1962.
Klabbers, Jan. An Introduction to International Organizations Law, 3rd ed. Cambridge: University Press, 2015.
Kunz, Josef L. “Privileges and Immunities of International Organizations” (1947), 41 A.J.I.L. 828.
League of Nations. Secretary‑General. “Communications from the Swiss Federal Council Concerning the Diplomatic Immunities to be Accorded to the Staff of the League of Nations and of the International Labour Office” (1926), 7 League of Nations O.J. 1422.
LeSage, Patrick J., and Michael Code. Report of the Review of Large and Complex Criminal Case Procedures. Toronto: Ontario Ministry of the Attorney General, 2008.
Lexis: le dictionnaire érudit de la langue française. Paris: Larousse, 2009, “archives”.
Merriam‑Webster’s Collegiate Dictionary, 11th ed. Springfield, Mass.: Merriam‑Webster, 2003, “archive”.
Miller, Anthony J. “The Privileges and Immunities of the United Nations” (2009), 6 I.O.L.R. 7.
Morton, Charles. Les privilèges et immunités diplomatiques: étude théorique suivie d’un bref exposé des usages de la Suisse dans ce domaine. Lausanne: Imprimerie La Concorde, 1927.
Muller, A. S. International Organizations and their Host States: Aspects of their Legal Relationship. The Hague: Kluwer Law International, 1995.
Preuss, Lawrence. “Diplomatic Privileges and Immunities of Agents Invested with Functions of an International Interest” (1931), 25 A.J.I.L. 694.
Reinisch, August. International Organizations Before National Courts. Cambridge: University Press, 2000.
Reinisch, August. “Transnational Judicial Conversations on the Personality, Privileges, and Immunities of International Organizations — An Introduction”, in August Reinisch, ed., The Privileges and Immunities of International Organizations in Domestic Courts. Oxford: University Press, 2013, 1.
Reinisch, August, and Jakob Wurm. “International Financial Institutions before National Courts”, in Daniel D. Bradlow and David B. Hunter, eds., International Financial Institutions and International Law. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2010, 103.
Salmon, Jean, dir. Dictionnaire de droit international public. Bruxelles: Bruylant, 2001, “archives d’une organisation internationale”.
Sands, Philippe, and Pierre Klein. Bowett’s Law of International Institutions, 6th ed. London: Sweet & Maxwell/Thomson Reuters, 2009.
Secretan, Jacques. Les immunités diplomatiques des représentants des états membres et des agents de la Société des nations. Lausanne: Librairie Payot, 1928.
Sen, B. A Diplomat’s Handbook of International Law and Practice, 3rd rev. ed. The Hague: Martinus Nijhoff, 1980.
United Nations. International Law Commission. “Fifth report on relations between States and international organizations (second part of the topic)”, by Leonardo Díaz González, U.N. Doc. A/CN.4/438, in Yearbook of the International Law Commission 1991, vol. II, Part One. New York: United Nations, 1994, 91.
Wouters, Jan, Sanderijn Duquet and Katrien Meuwissen. “The Vienna Conventions on Diplomatic and Consular Relations”, in Andrew F. Cooper, Jorge Heine and Ramesh Thakur, eds., The Oxford Handbook of Modern Diplomacy. Oxford: University Press, 2013, 510.
APPEAL from a decision of the Ontario Superior Court of Justice (Nordheimer J.), 2014 ONSC 7449, [2014] O.J. No. 6534 (QL), granting in part an application by the accused seeking an order for the validation of subpoenas and compelling the production of documents. Appeal allowed.
Alan J. Lenczner, Q.C., Scott Rollwagen and Chris Kinnear‑Hunter, for the appellant.
Scott K. Fenton and Lynda E. Morgan, for the respondent Kevin Wallace.
Frank Addario and Megan Savard, for the respondent Zulfiquar Bhuiyan.
David Cousins, for the respondent Ramesh Shah.
Kathryn Wells, for the respondent Mohammad Ismail.
Nicholas E. Devlin and François Lacasse, for the respondent Her Majesty the Queen in Right of Canada.
Scott C. Hutchison and Samuel Walker, for the intervener the Criminal Lawyers’ Association (Ontario).
Mark A. Gelowitz and Geoffrey Grove, for the interveners Transparency International Canada Inc. and Transparency International e.V.
Gerald Chan and Nader R. Hasan, for the intervener the British Columbia Civil Liberties Association.
Guy J. Pratte and Nadia Effendi, for the interveners the European Bank for Reconstruction and Development, the Organisation for Economic Co‑operation and Development, the African Development Bank Group, the Asian Development Bank, the Inter‑American Development Bank and the Nordic Investment Bank.
The judgment of the Court was delivered by
[1] Moldaver and Côté JJ. — Corruption is a significant obstacle to international development. It undermines confidence in public institutions, diverts funds from those who are in great need of financial support, and violates business integrity. Corruption often transcends borders. In order to tackle this global problem, worldwide cooperation is needed. When international financial organizations, such as the appellant World Bank Group, share information gathered from informants across the world with the law enforcement agencies of member states, they help achieve what neither could do on their own. As this Court recently affirmed, “International organizations are active and necessary actors on the international stage” (Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66, [2013] 3 S.C.R. 866, at para. 1).
[2] However, without any sovereign territory of their own, international organizations are vulnerable to state interference. In light of this, member states often agree to grant international organizations various immunities and privileges to preserve their orderly, independent operation. Commonly, an organization’s archives are shielded from interference, and its personnel are made immune from legal process.
[3] In the present appeal, the World Bank Group’s Integrity Vice Presidency (“INT”) investigated allegations that representatives of SNC-Lavalin Inc. (“SNC-Lavalin”) were planning to bribe officials of the Government of Bangladesh to obtain a contract related to the construction of the Padma Multipurpose Bridge (“Padma Bridge”), a project valued at US$2.9 billion. The World Bank Group shared some of the information from its investigation with the Royal Canadian Mounted Police (“RCMP”). On the basis of this information and other information gathered by the RCMP, the RCMP obtained wiretap authorizations. Subsequently, the individual accused (the “respondents”) were jointly charged with one count of bribing foreign public officials under the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 .
[4] The respondents challenged the wiretap authorizations pursuant to R. v. Garofoli, [1990] 2 S.C.R. 1421. In support of their Garofoli application, they applied for a third party production order pursuant to R. v. O’Connor, [1995] 4 S.C.R. 411, to compel senior investigators of the World Bank Group, Paul Haynes and Christopher Kim, to appear before a Canadian court and produce documents.
[5] The trial judge granted the applications. The World Bank Group, supported by the Crown respondent and several interveners, appeals from that order and seeks to have it overturned for two reasons.
[6] First, the World Bank Group submits that the Schedules of the Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7 (“Bretton Woods Act”), grant immunity to the archives and personnel of certain constituent organizations of the World Bank Group, including the International Bank for Reconstruction and Development (“IBRD”) and the International Development Association (“IDA”). Under Schedules II and III of the Bretton Woods Act, the IBRD’s and the IDA’s “archives . . . shall be inviolable” (“archival immunity”), and “[a]ll [g]overnors, [e]xecutive [d]irectors, [a]lternates, officers and employees . . . (i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the [IBRD or IDA] waives this immunity” (“personnel immunity”) (Sch. II, art. VII, ss. 5 and 8; Sch. III, art. VIII, ss. 5 and 8).
[7] Accordingly, the World Bank Group submits that the documents ordered produced by the trial judge are immune from production.
[8] Second, the World Bank Group and the Crown challenge the relevance of the documents sought in the context of the Garofoli application. They submit that the documents ordered produced by the trial judge are not relevant on the Garofoli application. Therefore, in their view, the trial judge’s order must be set aside on that basis as well.
[9] For reasons that follow, we agree with the appellant on both issues. Accordingly, we would allow the appeal and set aside the trial judge’s order.
I. Facts
[10] The World Bank Group is an international organization headquartered in Washington, D.C. It is composed of five separate organizations, the IBRD, the IDA, the International Finance Corporation, the Multilateral Investment Guarantee Agency and the International Centre for Settlement of Investment Disputes. Canada has ratified the Articles of Agreement and conventions establishing these organizations, along with 187 other member states.
[11] Among the World Bank Group’s most important responsibilities, it provides loans, guarantees, credits and grants for development projects and programs in developing countries. The World Bank Group was originally one of the primary lenders for the project at the heart of this case. The Padma Bridge project was to construct a six-kilometre long road and railway bridge over the Padma River in Bangladesh. The bridge was intended to link the capital, Dhaka, to the isolated southwest region. Through the IDA, the World Bank Group was to lend the Government of Bangladesh US$1.2 billion of the total US$2.9 billion cost of the bridge. The rest was to be financed by an international consortium of development banks and agencies.
[12] SNC-Lavalin was one of several companies bidding for a contract to supervise the construction of the bridge (the “Supervision Contract”). A committee of Bangladeshi officials evaluated the bids. The respondents allegedly conspired to bribe the committee to award the contract to SNC-Lavalin. Three of the respondents are former employees of SNC-Lavalin: Kevin Wallace, Ramesh Shah and Mohammad Ismail. The fourth, Zulfiquar Bhuiyan, was allegedly a representative of Abul Chowdhury, a Bangladeshi official alleged to be involved in this matter. They are all charged with an offence under the Corruption of Foreign Public Officials Act .
[13] The INT is responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group. The INT is an independent unit within the World Bank Group, reporting directly to its President. Mr. Haynes and Mr. Kim were senior investigators with the INT. Mr. Haynes was the primary investigator in this matter.
[14] In 2010, the INT received the first of a series of emails suggesting there was corruption in the process for awarding the Supervision Contract. The tipsters alleged SNC-Lavalin employees were negotiating to pay a portion of the contract amount to Bangladeshi officials in exchange for favourable treatment. Ultimately, the INT received emails from four tipsters. All but one remains anonymous to the RCMP. A second tipster has shared his or her identity with Mr. Haynes, but has refused to share it with the RCMP. The other two never revealed their identities to any investigator in this matter.
[15] In an earlier ruling which is not challenged in this Court, two of the four tipsters were found to be confidential informants under Canadian law, while the other two were not. Therefore, the identities of two informants are protected by informer privilege. As of the hearing of this appeal, the Crown had no intention to call any of the tipsters as witnesses at trial.
[16] The INT contacted the RCMP in March 2011 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 Part VI of the Criminal Code, R.S.C. 1985, c. C-46 , in order to obtain direct evidence of the respondents’ participation in corruption. The authorization was granted, along with two further authorizations.
[17] The process of applying for these authorizations is at the heart of this matter. Sgt. Jamie Driscoll was assigned to prepare an affidavit for the initial application (also known as an information to obtain). In preparing that affidavit and two subsequent affidavits, Sgt. Driscoll largely relied on information the INT shared based on its communications with the tipsters, as well as Mr. Haynes’s knowledge of the bidding process. Sgt. Driscoll also spoke directly to one of the tipsters but not to the others.
[18] Sgt. Driscoll did not make any handwritten notes of his work as affiant. All of his emails for the period of the investigation were lost because of a computer problem, though many were recovered through other sources. The respondents rely on these deficiencies in support of their production applications. More will be said about these deficiencies in our discussion of the Garofoli application.
[19] The RCMP applied for and was granted its first wiretap authorization on May 24, 2011. Further authorizations were granted on June 24, 2011 and August 8, 2011. A search warrant was granted in September 2011.
[20] Mr. Ismail and Mr. Shah were charged first, in early 2012. Both were committed for trial after a preliminary hearing in April 2013 and indicted in May 2013. On September 17, 2013, the Crown charged Mr. Wallace and Mr. Bhuiyan and, the following month, joined their proceedings to Mr. Ismail’s and Mr. Shah’s by direct indictment.
[21] The Crown intends to present intercepted communications at trial. In addition, an alleged co-conspirator, Muhammad Mustafa, has agreed to testify as a Crown witness against the respondents.
[22] As a result of the investigation, the World Bank Group cancelled its financing for the Padma Bridge and debarred SNC-Lavalin from participating in World Bank Group-funded projects for 10 years.
II. Decision Below
[23] The decision under review arises from an application brought in the Ontario Superior Court of Justice, in which the respondents sought the validation of two subpoenas issued to Mr. Haynes and Mr. Kim, as well as an order requiring production of the following documents (the “INT’s records”):
a. All notes, memoranda, emails, correspondence and reports received or sent by Mr. Paul Haynes of INT regarding the Investigation;
b. All source documents from all so-called “tipsters” sent to INT, whether or not such information was shared with the RCMP as part of INT’s cooperation with the RCMP investigation into the Padma Bridge Project;
c. All emails and other communications between INT and the tipsters;
d. Any sanctions or settlements entered into by the World Bank with any third parties as a result of the Investigation;
e. Any other investigative materials relevant to the Investigation in the possession of other World Bank officials, including Christina Ashton-Lewis (Senior Institutional Intelligence Officer), Kunal Gupta (World Bank’s Case Intake Unit), Laura Valli (Senior investigator) and Christopher Kim; and
f. All communications between INT, representatives of SNC, representatives of the Bangladeshi government, members [of] the RCMP and/or the Crown regarding the Investigation, the related RCMP investigation and/or the charges or proceedings commenced by the Crown before the Courts in Ontario.
(2014 ONSC 7449, [2014] O.J. No. 6534 (QL), at Appendix A)
Two issues were raised on the application: (1) whether the World Bank Group could be subject to a production order issued by a Canadian court, and (2) if so, whether in the context of a Garofoli application, the documents sought met the test for relevance.
[24] Nordheimer J., the trial judge, found that the INT’s archives and personnel formed part of the IBRD, whose immunities are set out in Article VII of the IBRD Articles of Agreement and implemented in Canadian law by an Order in Council, the International Monetary Fund and International Bank for Reconstruction and Development Order, P.C. 1945-7421. The immunities and privileges set out in Article VII were therefore prima facie applicable to the archives and personnel of the INT. The trial judge further found that both Mr. Haynes and Mr. Kim were acting in an official capacity and were therefore shielded by the personnel immunity provided in Article VII, s. 8. However, he determined that the World Bank Group had waived this personnel immunity.
[25] In so concluding, the trial judge rejected the Crown’s submission that the World Bank Group’s personnel immunity could only be waived expressly, determining instead that it could be waived either implicitly or expressly. He provided three reasons for this.
[26] First, the trial judge noted that the relevant provisions of the Articles of Agreement do not explicitly require an express waiver, as do the provisions providing legal process immunity to the United Nations and to the International Monetary Fund.
[27] Second, the trial judge reasoned by analogy that just as a privilege holder cannot choose to selectively reveal some privileged communications but not others, the World Bank Group similarly could not choose to provide some of its documents for use in the criminal prosecution but refuse to provide other relevant documents.
[28] Finally, the trial judge relied on the “benefit/burden exception” to Crown immunity discussed by La Forest J. in Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015. He found that the World Bank Group had chosen to benefit from Canadian criminal proceedings; for example, it had sought to obtain materials seized pursuant to the search warrants and information obtained from the intercepted communications. Consequently, the World Bank Group was obliged to accept the attendant burdens of doing so, which includes compliance with procedural rules.
[29] The trial judge then turned to the archival immunity provided in Article VII, s. 5. He found that the different sections within Article VII of the IBRD Articles of Agreement do not set out discrete free-standing immunities; in other words, archival immunity was not separate from personnel immunity. Accordingly, he concluded that if the World Bank Group had waived its immunity, it had done so for all purposes. In any event, he was not persuaded that the documents at issue should be considered part of the “archives”, which he limited to historical records. Moreover, in his view, the term “inviolable” connoted protection from search and seizure or confiscation, but not from production for inspection.
[30] On the second issue, the trial judge concluded that the documents sought by the respondents were likely relevant to issues that would arise on a Garofoli application. Virtually all of the information relied on by the affiant in the affidavits filed in support of the wiretap authorizations came from the INT and its investigative file. The affiant did not keep handwritten notes of his work preparing the affidavits. Accordingly, the trial judge ordered that the documents listed under headings a., b., c. and e., in para. 23 above, be produced for review by the court, the second step in an O’Connor application.
[31] The World Bank Group appealed the decision to this Court, with leave, on the authority of Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, which allows a third party affected by an order of a superior court judge to challenge that order before this Court.
III. Parties’ Submissions
[32] The World Bank Group submits that the INT is a division of the IBRD, and enjoys, as