Focus On

Defence counsel worries decision may mean yielding too much turf

Thursday, May 12, 2016 @ 8:00 PM | By Cristin Schmitz

Officials of international organizations can breathe easier after the Supreme Court ruled 9-0 that key immunities guaranteed by an international treaty — signed by Canada and 187 other nations — shield two World Bank entities from domestic court orders to produce personnel or records in criminal prosecutions, including information relating to anonymous informants.

The April 29 judgment of Justices Michael Moldaver and Suzanne Côté, in favour of the appellant Washington, D.C.-based World Bank Group, is said to be vital to the global campaign against corruption, including Ottawa’s efforts to combat bribery by Canadians abroad: World Bank Group v. Wallace 2016 SCC 15.

“Why this case is so important is…this is the highest court that has dealt with this anywhere in the world,” explained the World Bank Group’s counsel, Alan Lenczner of Toronto’s Lenczner Slaght.

Lenczner told The Lawyers Weekly the court’s determination that the archival and personnel immunities of the World Bank entities are robust “applies really to any international organization which has got [similar] immunities built-in. It applies much more broadly than to this [appellant].”

He noted the case was being followed globally because considerable fallout was anticipated if such an internationally respected court had ruled that the treaty-based immunities were not bulletproof.

However, the court acknowledged the argument of intervener Transparency International that whistleblowers must be protected, and that failing to uphold an international organization’s immunities could have a chilling effect on such organizations’ co-operation with domestic criminal prosecutions.

“Corruption is a significant obstacle to international development,” Justices Moldaver and Côté wrote. “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 co-operation 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.”

The court allowed the appeal on the basis that the International Bank for Reconstruction and Development and the International Development Agency (two of five institutions that make up the World Bank Group), are protected by the immunities in their constituent treaty, which Canada implemented in the federal Bretton Woods and Related Agreements Act.

These immunities, which also feature in the constituent treaties of other international organizations, generally insulate the World Bank entities from being compelled by domestic court order to produce their officials, or information from their archives, at least in criminal cases.

Notably, the Supreme Court also held that the bank entities did not waive their immunities by voluntarily conveying information to the RCMP — including from confidential tipsters who told the bank’s investigative unit that SNC-Lavalin Inc. was in the process of bribing Bangladeshi officials to grant the Canadian engineering firm a contract to supervise the US$2.9 billion Padma Bridge project in Bangladesh. The bank was originally a primary lender in the project. The court ruled that the bank’s “archival” immunity is not subject to waiver.

It went on to set aside an Ontario Superior Court production order granted to defence counsel who challenged the legality of RCMP wiretaps used to gather evidence against their clients in support of a bribery charge under the federal Corruption of Foreign Public Officials Act. The accused respondents — three ex-SNC-Lavalin Inc. executives and one other man — are facing trial here for the alleged bribery plan and the case is expected to continue with pre-trial motions later this year.

Scott Fenton of Toronto’s Fenton, Smith Barristers, who represents the accused Kevin Wallace, said he is “concerned” that international organizations which actively participate in Canadian criminal investigations and prosecutions now have a green light to make selective disclosure because “no Canadian court can compel them to disclose further information, or otherwise hold them accountable for their conduct.”

What the court ruled is “that at least the World Bank enjoys absolute immunity with regard to what it does in terms of co-operating with Canadian law enforcement,” Fenton said. “So the implications are potentially wide-ranging, depending on the facts and circumstances of the case. So for example, if the international organization was in possession of exculpatory information, and refused to provide it to the Canadian authorities or defence counsel, that could cause serious prejudice to the [Charter] rights of the accused to make full answer and defence.”

He said the judgment leaves it open for the defence to request, under s. 24 of the Charter, an order excluding certain evidence or, in the case of lost or unavailable information being withheld by an international organization, a stay of proceedings in the most serious circumstances.

The Supreme Court decided to set aside the production order not only because the bank’s documents are immune from production, but also because the court agreed with the bank and the Crown that the documents ordered produced by the trial judge were not shown to be relevant to the defence’s Garofoli application which sought to exclude the wiretap evidence on the basis that it was obtained pursuant to a defective authorization.

In so ruling, Justices Moldaver and Côté clarified that the threshold that applies when the defence seeks to obtain third-party records in the context of a Garofoli application is that “an accused must show a reasonable likelihood that the records sought will be of probative value to the issues on the application. As with cross-examination of an affiant, it must be reasonably likely that the records will be useful.”

The court held that the defence, which has already had “voluminous” disclosure, did not meet that test.

Fenton said the court’s comments on the threshold are consistent with precedents in lower courts, but added: “Generally speaking, it will make it more difficult to obtain information from third parties relevant to forthcoming Garofoli applications than otherwise…Essentially what the Supreme Court ruled was that the test of ‘likely relevance’ on such a third-party records motion is similar to the test of likely relevance that must be demonstrated in an application to cross-examine an affiant under [R. v. Pires; R. v. Lising 2005 SCC 66]. So the court aligned the tests.”

He added, “there does seem to be a trend, that I see as unfortunate, in the jurisprudence towards making the test for defence motions, such as third-party records applications and applications for leave to cross-examine, have to meet a higher threshold.”

The RCMP obtained the wiretap authorizations on the basis of information the World Bank Group shared and other information the RCMP gathered. The respondents challenged the wiretap authorizations and, in support of their Garofoli application, they applied for a third-party production order to compel senior investigators of the World Bank Group to appear and produce documents.

The bank noted the accused have already received all of the evidence put before the judge who authorized the wiretaps, including documents and information provided to Canadian authorities by the bank. But in order to preserve its ability to combat corruption, the bank follows a policy of not revealing the identities of individuals or other entities that co-operate with it and not disclosing information that may enable their identification to be determined. It redacts all of its reports, including referral reports to national authorities, to omit any information that may identify a confidential witness.

The Bretton Woods Act grants immunity to the archives and personnel of World Bank Group entities in these terms: “archives…shall be inviolable” and “[a]ll governors, executive directors, alternates, officers and employees… (i) shall be immune from legal process with respect to acts performed by them in their official capacity except” when the immunity is waived by the entities.