On April 29, 2016, the Supreme Court of Canada (SCC) ruled unanimously in World Bank Group v. Wallace that documents from World Bank Group investigations remain immune from document production requests that are part of domestic court proceedings, even if information related to those documents has been shared with and relied upon by domestic law enforcement agencies. While the issues in the World Bank case arose in the specific context of a challenge to a wiretap authorization, the SCC's decision clarifies the inviolability of the archives of international organizations as well as immunity of their personnel from legal process, two important protections that shield cooperation and information-sharing activities with Canadian law enforcement in corruption investigations.
Since the late 1990s, governments and international organizations have worked to implement a supply-side anti-corruption strategy by criminalizing corruption of foreign public officials. The World Bank and other international financial institutions, as well as government procurement agencies at the national level, have contributed to the effort by implementing debarment procedures that disqualify companies that engage in corruption from future contracts. These debarment procedures are typically incorporated by reference in procurement agreements and require companies suspected of corruption to cooperate in the procuring entity's investigation of the matter.
The World Bank's investigative arm, the Integrity Vice Presidency (INT) received information in March 2011 about alleged corruption in connection with the World Bank-funded Padma Bridge project in Bangladesh. After initiating its own investigation, the INT provided some of the information it obtained to the Royal Canadian Mounted Police (RCMP). The World Bank investigation ultimately resulted in the cancellation of its loan for the project and a negotiated settlement with SNC-Lavalin, including a 10-year debarment of the company and certain affiliates from World Bank-funded projects. The RCMP initiated its own criminal investigation into the matter and obtained judicial authorizations to intercept private communication and execute a search warrant at SNC-Lavalin's offices on the basis of evidence and information obtained from the INT.
As a result of the RCMP's investigation, four individuals are now charged with bribing foreign public officials contrary to the Corruption of Foreign Public Officials Act. The accused challenged the wiretap authorizations and sought to subpoena INT investigators and obtain the production of various documents from the INT's investigative file. Justice Nordheimer of the Ontario Superior Court of Justice granted the applications.
SCC Upholds a Broad and Strong Interpretation of the World Bank's Immunities
The SCC determined that Justice Nordheimer erred for two reasons. First, documents and personnel of the World Bank benefit from immunity that cannot be waived in the case of documents, and must be expressly waived in the case of personnel. While the INT operates independently from the rest of the World Bank, the function it performs of ensuring that funds granted to projects are used for their intended purposes, is part of the World Bank's proper functioning and is contemplated in the same agreements that set out the immunities that apply to World Bank documents and personnel (World Bank Group v. Wallace, 2016 SCC 15 at paras. 51-53). Second, in the narrow context of the proceeding to challenge a wiretap authorization, the documents that the accused persons were seeking were not relevant.
In upholding the World Bank's immunities, the SCC seemed particularly swayed by public policy considerations about the importance of the immunities applicable to international organizations' documents and personnel in the fight against corruption. It noted that these immunities are integral to the independent functioning of international organizations (World Bank Group v. Wallace, 2016 SCC 15 at para. 67) and that international financial institutions such as the World Bank "are particularly well placed to investigate corruption and serve at the frontlines of international anti-corruption efforts" (World Bank Group v. Wallace, 2016 SCC 15 at para. 94).
The SCC warned against interpreting the immunities of international organizations as capable of being waived through the action of sharing information with bodies such as the RCMP as such interpretations would potentially have a chilling effect on collaboration with domestic law enforcement (World Bank Group v. Wallace, 2016 SCC 15 at para. 94). In the view of the SCC, [w]hen 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 (World Bank Group v. Wallace, 2016 SCC 15 at para. 1).
Companies and individuals that are subject to non-criminal sanctions and debarment investigations by international organizations should be aware that information arising from those investigations may be shared with and acted upon by Canadian law enforcement, without any guarantees that the underlying documents or individuals will ever become compellable in domestic criminal proceedings.